4,750,000 Shares THE GEO GROUP, INC. Common Stock UNDERWRITING AGREEMENT
EXHIBIT 1.1
4,750,000 Shares
THE GEO GROUP, INC.
Common Stock
March 19, 2007
Xxxxxx Brothers Inc.
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
attached hereto
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
attached hereto
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The GEO Group, Inc., a Florida corporation (the “Company”), proposes to sell 4,750,000 shares
(the “Firm Stock”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”).
In addition, the Company proposes to grant to the underwriters (the “Underwriters”) named in
Schedule 1 attached to this agreement (this “Agreement”) an option to purchase up to
712,500 additional shares of the Common Stock on the terms set forth in Section 2 (the “Option
Stock”). The Firm Stock and the Option Stock, if purchased, are hereinafter collectively called
the “Stock.” This is to confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) A registration statement on Form S-3 relating to the Stock has (i) been prepared by
the Company in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Company to you as the representative (the “Representative”) of the Underwriters. As used in
this Agreement:
(i) “Applicable Time” means 5:45 p.m. (New York City time) on March 19, 2007;
(ii) “Effective Date” means March 13, 2007, the date as of which the
Registration Statement became effective;
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Stock;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Stock included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus
filed or used by the Company on or before the Applicable Time, other than a road
show that is an Issuer Free Writing Prospectus but is not required to be filed under
Rule 433 of the Rules and Regulations;
(vi) “Prospectus” means the final prospectus relating to the Stock, including
any prospectus supplement thereto relating to the Stock, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means, collectively, the various parts of such
registration statement, each as amended as of the Effective Date for such part,
including any Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case
may be. Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer
to the latest Preliminary Prospectus included in the Registration Statement or filed
pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date hereof). Any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and before the date of such amendment or supplement and
incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Date and before the date of
such amendment that is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement,
and no proceeding or examination for such purpose has been instituted or threatened by the
Commission.
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(b) The Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164 (h)(2) of the Rules and Regulations) of the
Stock, is not on the date hereof and will not be on the applicable Delivery Date an
“ineligible issuer” (as defined in Rule 405). The Company has been since the time of
initial filing of the Registration Statement and continues to be eligible to use Form S-3
for the offering of the Stock. The Company has met all the conditions for incorporation by
reference pursuant to the General Instructions to Form S-3. The Company has been since the
time of initial filing of the Registration Statement and continues to be a “well-known
seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for the offering of the
Stock at any time since the initial filing of the Registration Statement. The Registration
Statement is an “automatic shelf registration statement” (as defined in Rule 405)
and was filed not earlier than the date that is three years prior to the applicable
Delivery Date (as defined in Section 4).
(c) The Registration Statement conformed, and will conform, in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects
when filed, to the requirements of the Securities Act and the Rules and Regulations. The
most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule 424(b) and on the
applicable Delivery Date to the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform, when filed
with the Commission, in all material respects to the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations of the Commission thereunder.
(d) The Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
necessary to make the statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Registration Statement
in reliance upon and in conformity with written information furnished to the Company through
the Representative by or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 8(e).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(f) The documents incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and incorporated by reference
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therein will not, when filed with the Commission, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(g) The Pricing Disclosure Package together with the information included on
Schedule 3 hereto did not, as of the Applicable Time, contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in
conformity with written information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein, which information is
specified in Section 8(e).
(h) Each Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered together with the Pricing
Disclosure Package together with the information included on Schedule 3 hereto as of
the Applicable Time, did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(i) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with any filing requirements applicable to such
Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Company has not
made any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representative. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations.
(j) Each of the Company and its subsidiaries (as defined in Section 17) has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations, stockholders’ equity, properties
or business of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”); each of the Company and its subsidiaries has all power and authority necessary to
own or hold its properties and to conduct the businesses in which it is engaged. The
Company does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the most recent fiscal year. None of the
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subsidiaries of the Company (other than Australasian Correctional Investments Limited,
The GEO Group Australia Pty Limited, The GEO Group UK Limited, South African Custodial
Management (Pty) Limited, Correctional Services Corporation, GEO Holdings I, Inc., GEO
Acquisitions II, Inc. and CPT Operating Partnership L.P. (collectively, the “Significant
Subsidiaries”)) is a “significant subsidiary” (as defined in Rule 405).
(k) The Company has an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus, and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued, are fully paid and
non-assessable, conform in all material respects to the description thereof contained in
each of the most recent Preliminary Prospectus and the Prospectus and were issued in
compliance with federal and state securities laws and not in violation of any preemptive
right, resale right, right of first refusal or similar right. All of the Company’s options,
warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued, conform in all material respects
to the description thereof contained in each of the most recent Preliminary Prospectus and
the Prospectus and were issued in compliance with federal and state securities laws. All of
the issued shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and non-assessable and, except for liens in
favor of the lenders under the Company’s Senior Credit Facility (as defined in the
Prospectus), are owned directly or indirectly by the Company (other than shares owned by
third parties with respect to non-wholly-owned subsidiaries), free and clear of all liens,
encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The shares of the Stock to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, upon payment and delivery in accordance with this
Agreement, will be validly issued, fully paid and non-assessable, will conform in all
material respects to the description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus, will be issued in compliance with federal and
state securities laws and will be free of statutory and contractual preemptive rights,
rights of first refusal and similar rights.
(m) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(n) The execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby and the application of the proceeds
from the sale of the Stock as described under “Use of Proceeds” in the most recent
Preliminary Prospectus will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, impose any lien, charge or encumbrance upon any property or
assets of the Company and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
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the Company or any of its subsidiaries is subject; (ii) result in any violation of the
provisions of the charter or by-laws (or similar organizational documents) of the Company or
any of its subsidiaries; or (iii) result in any violation of any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets, except in the case
of clauses (i) and (iii), for any such conflict, breach, violation, imposition of a lien,
charge or encumbrance, or default that could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect or affect the ability of the Company to perform in all
material respects its obligations under this Agreement.
(o) No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions
contemplated hereby, the application of the proceeds from the sale of the Stock as described
under “Use of Proceeds” in each of the most recent Preliminary Prospectus and the
Prospectus, except for the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with the purchase
and sale of the Stock by the Underwriters.
(p) There are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company under the
Securities Act.
(q) The Company has not sold or issued any securities that would be integrated with the
offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the Commission.
(r) Except as described in the most recent Preliminary Prospectus, (i) neither the
Company nor any of its subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the most recent Preliminary
Prospectus, any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and (ii) since such date, subject to the effect of the
transactions contemplated by this Agreement, there has not been any change in the capital
stock or long-term debt of the Company on a consolidated basis or any of its subsidiaries or
any adverse change, or any development involving a prospective adverse change, in or
affecting the condition (financial or otherwise), results of operations, stockholders’
equity, properties, management or business of the Company and its subsidiaries taken as a
whole, except in the case of clauses (i) and (ii), for any such loss, interference, change
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or development that could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(s) Since the date as of which information is given in the most recent Preliminary
Prospectus and except as described in the most recent Preliminary Prospectus, the Company
has not (i) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary course of business, or
liabilities and obligations that could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect, (ii) other than as described in any documents filed with the
Commission and incorporated by reference in the Preliminary Prospectus, entered into any
material transaction not in the ordinary course of business or (iii) declared or paid any
dividend on its capital stock.
(t) The historical financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the most recent Preliminary Prospectus
comply as to form in all material respects with the requirements of Regulation S-X under the
Securities Act and present fairly the financial condition, results of operations and cash
flows of the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis throughout the periods involved.
(u) The pro forma financial statements incorporated by reference in the most recent
Preliminary Prospectus from the Company’s Report on Form 8-K/A, filed with the Commission on
February 26, 2007, include assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and events described therein,
the related pro forma adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments in all material
respects to the historical financial statement amounts in the pro forma financial statements
incorporated by reference in the most recent Preliminary Prospectus. The pro forma
financial statements incorporated by reference in the most recent Preliminary Prospectus
comply as to form in all material respects with the applicable requirements of Regulation
S-X under the Securities Act.
(v) Xxxxx Xxxxxxxx LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(g) hereof, are independent public accountants for the Company for
the fiscal year ended December 31, 2006 as required by the Securities Act and the Rules and
Regulations; Ernst & Young LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, whose report appears in the most recent
Preliminary Prospectus or is incorporated by reference therein and who have delivered the
initial letter referred to in Section 7(i) hereof, were independent public accountants for
the Company for the fiscal years ended January 2, 2005 and January 1, 2006 as required by
the Securities Act and the Rules and Regulations.
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(w) The statistical and market-related data included under the captions “Summary,”
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and
“Business” in the most recent Preliminary Prospectus and the consolidated financial
statements of the Company and its subsidiaries included or incorporated by reference in the
most recent Preliminary Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate in all material respects.
(x) Neither the Company nor any subsidiary is, and as of the applicable Delivery Date
and, after giving effect to the offer and sale of the Stock and the application of the
proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, (i) an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder or (ii) a
“business development company” (as defined in Section 2(a)(48) of the Investment Company
Act).
(y) Except as described in the most recent Preliminary Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its subsidiaries is the
subject that could, in the aggregate, reasonably be expected to have a Material Adverse
Effect or could, in the aggregate, reasonably be expected to have a material adverse effect
on the Company’s performance of this Agreement or the consummation of the transactions
contemplated hereby; and to the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(z) No material relationship, direct or indirect, exists between or among the Company,
on the one hand, and the directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, that is required to be described in the most recent Preliminary
Prospectus or the Prospectus which is not so described.
(aa) No labor disturbance by the employees of the Company or its subsidiaries exists
or, to the knowledge of the Company, is imminent that could reasonably be expected to have a
Material Adverse Effect.
(bb) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the
Employee Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company or any
member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”)) would have any liability (each a “Plan”) has been
maintained in compliance in all material respects with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with
respect to each Plan subject to Title IV of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no
material “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or
Section 412 of the Code), whether or not
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waived, has occurred or is reasonably expected to occur, (c) the fair market value of
the assets under each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan) and (d) neither the Company
or any member of its Controlled Group has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the
PBGC in the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA), except where such
liability could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (iii) each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and, to the knowledge of the Company, nothing
has occurred, whether by action or by failure to act, which would cause the loss of such
qualification.
(cc) The Company and each of its subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and have paid all taxes due thereon, and no tax deficiency
has been determined adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies that could, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(dd) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Stock.
(ee) Neither the Company nor any of its subsidiaries (i) is in violation of its charter
or by-laws (or similar organizational documents), (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or assets or has
failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clauses (ii) and (iii), to the extent any such conflict,
breach, violation or default could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ff) The Company and each of its subsidiaries (i) make and keep accurate books and
records, except for such inaccuracies which would not, individually or in the aggregate,
have a Material Adverse Effect on the Company or the Company’s consolidated financial
statements; (ii) as of December 31, 2006, maintained effective internal control over
financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of
internal accounting controls sufficient to provide reasonable assurance that, in all
material respects, (A) transactions are executed in accordance with management’s general or
specific authorization, (B) transactions are recorded as
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necessary to permit preparation of the Company’s financial statements in conformity
with accounting principles generally accepted in the United States and to maintain
accountability for its assets, (C) access to the Company’s assets is permitted only in
accordance with management’s general or specific authorization and (D) the recorded
accountability for the Company’s assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences and (iii) has not
made any change in its internal controls over financial reporting that has materially
affected, or is reasonably likely to materially affect its internal control over financial
reporting.
(gg) (i) The Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company and its subsidiaries in the reports they
will file or submit under the Exchange Act is accumulated and communicated to management of
the Company and its subsidiaries, including their respective principal executive officers
and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made; (iii) as of December 31, 2006, such disclosure controls and
procedures were effective in all material respects to perform the functions for which they
were established and (iv) neither the Company nor any of its subsidiaries has made any
change in its disclosure controls and procedures that has materially affected, or is
reasonably likely to materially affect its disclosure controls and procedures.
(hh) Since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by Xxxxx Xxxxxxxx and the audit committee of
the board of directors of the Company, (i) the Company has not been advised of (A) any
material weaknesses in the design or operation of internal controls that could adversely
affect the ability of the Company and each of its subsidiaries to record, process, summarize
and report financial data, or any material weaknesses in internal controls and (B) any
fraud, whether or not material, that involves management or other employees who have a
significant role in the internal controls of the Company and each of its subsidiaries, and
(ii) since that date, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(ii) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with the provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith.
(jj) The Company and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary under applicable law to own their
properties and conduct their businesses in the manner described in the most recent
Preliminary Prospectus, except for any of the foregoing that could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; each of the
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Company and its subsidiaries has fulfilled and performed all of its obligations with
respect to the Permits, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other impairment of
the rights of the holder or any such Permits, except for any of the foregoing that could not
reasonably be expected to have a Material Adverse Effect.
(kk) The Company and each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for the conduct of their
respective businesses, except where the failure to so own or possess such rights could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect, and the Company
and each of its subsidiaries have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others.
(ll) Except as described in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against the Company or any of its
subsidiaries under any laws, regulations, ordinances, rules, orders, judgments, decrees,
permits or other legal requirements of any governmental authority, including without
limitation any international, national, state, provincial, regional, or local authority,
relating to the protection of human health or safety, the environment, or natural resources,
or to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) in which a governmental authority is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (B) the Company and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the capital expenditures, earnings
or competitive position of the Company and its subsidiaries, and (C) none of the Company
and its subsidiaries anticipates material capital expenditures relating to Environmental
Laws.
(mm) Neither the Company nor any subsidiary is in violation of or has received notice
of any violation with respect to any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wage and hour
laws, nor any state law precluding the denial of credit due to the neighborhood in which a
property is situated, the violation of any of which could reasonably be expected to have a
Material Adverse Affect.
(nn) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or, except for customary non-assignment provisions in contracts, from
transferring any of such subsidiary’s material
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properties or assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the most recent Preliminary Prospectus.
(oo) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(pp) The operations of the Company and its subsidiaries are and have been conducted at
all times in material compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened, except, in each
case, as would not reasonably be expected to have a Material Adverse Effect.
(qq) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(rr) The Company has not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Stock, will not distribute any offering
material in connection with the offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representative
has consented in accordance with Section 1(i) or 5(a)(vi).
(ss) The Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
(tt) The Stock will, upon its delivery by the Company on the Initial Delivery Date, be
listed on the New York Stock Exchange.
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Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Stock shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase of the Stock by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the Company
agrees to sell 4,750,000 shares of the Firm Stock to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Stock
set forth opposite that Underwriter’s name in Schedule 1 hereto. The respective purchase
obligations of the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representative may determine.
In addition, the Company grants to the Underwriters an option to purchase up to 712,500
additional shares of Option Stock. Such option is exercisable in the event that the Underwriters
sell more shares of Common Stock than the number of Firm Stock in the offering and as set forth in
Section 4 hereof. Each Underwriter agrees, severally and not jointly, to purchase the number of
shares of Option Stock (subject to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the total number of shares of
Option Stock to be sold on such Delivery Date as the number of shares of Firm Stock set forth in
Schedule 1 hereto opposite the name of such Underwriter bears to the total number of shares
of Firm Stock.
The price of both the Firm Stock and any Option Stock purchased by the Underwriters shall be
$43.99 per share (which reflects the total underwriting discounts and commissions to be received by
the Underwriters).
The Company shall not be obligated to deliver any of the Firm Stock or Option Stock to be
delivered on the applicable Delivery Date, except upon payment for all such Stock to be purchased
on such Delivery Date as provided herein.
3. Offering of Stock by the Underwriters. Upon authorization by the Representative of the
release of the Firm Stock, the several Underwriters propose to offer the Firm Stock for sale upon
the terms and conditions to be set forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of and payment for the Firm Stock shall be
made at 10:00 A.M., New York City time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes referred to as the “Initial
Delivery Date.” Delivery of the Firm Stock shall be made to the Representative for the account of
each Underwriter against payment by the several Underwriters through the Representative and of the
respective aggregate purchase prices of the Firm Stock being sold by the Company to or upon the
order of the Company of the purchase price by wire transfer in immediately available funds to the
accounts specified by the Company. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a
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further condition of the obligation of each Underwriter hereunder. The Company shall deliver
the Firm Stock through the facilities of DTC unless the Representative shall otherwise instruct.
The option granted in Section 2 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Company by
the Representative; provided that if such date falls on a day that is not a business day, the
option granted in Section 2 will expire on the next succeeding business day. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is being exercised, the
names in which the shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by the Representative,
when the shares of Option Stock are to be delivered; provided, however, that this date and time
shall not be earlier than the Initial Delivery Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. Each date and time the shares of Option
Stock are delivered is sometimes referred to as an “Option Stock Delivery Date,” and the Initial
Delivery Date and any Option Stock Delivery Date are sometimes each referred to as a “Delivery
Date.”
Delivery of the Option Stock by the Company and payment for the Option Stock by the several
Underwriters through the Representative shall be made at 10:00 A.M., New York City time, on the
date specified in the corresponding notice described in the preceding paragraph or at such other
date or place as shall be determined by agreement between the Representative and the Company. On
the Option Stock Delivery Date, the Company shall deliver or cause to be delivered the Option Stock
to the Representative for the account of each Underwriter against payment by the several
Underwriters through the Representative and of the respective aggregate purchase prices of the
Option Stock being sold by the Company to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds to the accounts specified by the Company. Time shall
be of the essence, and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. The Company shall deliver the
Option Stock through the facilities of DTC unless the Representative shall otherwise instruct.
5. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representative and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s
close of business on the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the last Delivery Date except as provided herein; to advise the
Representative, promptly after it receives notice thereof, of the time when any amendment or
supplement to the Registration Statement or the Prospectus has been filed and to furnish the
Representative with copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Stock; to
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advise the Representative, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of
the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding or examination for any such purpose or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(ii) To furnish promptly to the Representative and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits filed
therewith;
(iii) To deliver promptly to the Representative such number of the following documents
as the Representative shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C)
each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at
any time after the date hereof in connection with the offering or sale of the Stock or any
other securities relating thereto and if at such time any events shall have occurred 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 in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Representative and, upon its request, to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to time reasonably request of
an amended or supplemented Prospectus that will correct such statement or omission or effect
such compliance;
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, any document incorporated by reference in the Prospectus or any
amendment to any document incorporated by reference in the Prospectus, to furnish a copy
thereof to the Representative and counsel for the
-15-
Underwriters and obtain the consent of the Representative to the filing (which consent
may not be unreasonably withheld);
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representative.
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus not required to be filed pursuant to the Rules and Regulations; and
if at any time after the date hereof any events shall have occurred as a result of which any
Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the
information in the Registration Statement, the most recent Preliminary Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if for any other reason it
shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the
Representative and, upon its request, to file such document and to prepare and furnish
without charge to each Underwriter as many copies as the Representative may from time to
time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that
will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date (it being understood that the
Company shall have until at least 400 or, if the fourth quarter following the fiscal quarter
that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year,
425 days after the end of the Company’s current fiscal quarter), to make generally available
to the Company’s security holders and to deliver to the Representative an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(ix) Promptly from time to time to take such action as the Representative may
reasonably request to qualify the Stock for offering and sale under the securities laws of
Canada and such other jurisdictions as the Representative may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be required to (i) qualify as a
foreign corporation in any jurisdiction in which it would not otherwise be required to so
qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(x) For a period commencing on the date hereof and ending on the 90th day
after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the shares issued pursuant to employee benefit
plans, stock option plans or other employee compensation plans existing on the
-16-
date hereof or pursuant to currently outstanding options, warrants or rights), or sell
or grant options, rights or warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other than the grant of
options pursuant to option plans existing on the date hereof), (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, (3) file or cause to be filed a
registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common
Stock or any other securities of the Company (other than any registration statement on Form
S-8) or (4) publicly disclose the intention to do any of the foregoing, in each case without
the prior written consent of Xxxxxx Brothers Inc. and Banc of America Securities LLC, on
behalf of the Underwriters, and to cause each officer, director and stockholder of the
Company set forth on Schedule 2 hereto to furnish to the Representative, prior to
the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit
A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the
last 17 days of the Lock-Up Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs or (2) prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed
in this paragraph shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the announcement of the material news
or the occurrence of the material event, unless Xxxxxx Brothers Inc. and Banc of America
Securities LLC on behalf of the Underwriters, waive such extension in writing;
(xi) To apply the net proceeds from the sale of the Stock being sold by the Company as
set forth in the Prospectus;
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by such Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent, “Permitted Issuer
Information”); provided that (i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used in this Section 5(b), shall not
be deemed to include information prepared by or on behalf of such Underwriter on the basis of or
derived from issuer information.
6. Expenses. The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the
Stock and any stamp duties or other taxes payable in that connection, and the preparation and
printing of certificates for the Stock; (b) the preparation, printing and filing under the
Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
-17-
or supplement thereto; (c) the distribution of the Registration Statement (including any
exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
and any amendment or supplement thereto, or any document incorporated by reference therein, all as
provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental
agreement among Underwriters, and any other related documents in connection with the offering,
purchase, sale and delivery of the Stock; (e) any required review by the National Association of
Securities Dealers, Inc. (the “NASD”) of the terms of sale of the Stock (including related fees and
expenses of counsel to the Underwriters) in an amount that is not greater than $5,000; (f) the
listing of the Stock on the New York Stock Exchange and/or any other exchange; (g) the
qualification of the Stock under the securities laws of the several jurisdictions as provided in
Section 5(a)(ix) and the preparation, printing and distribution of a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters); (h) the preparation, printing and
distribution of one or more versions of the Preliminary Prospectus and the Prospectus for
distribution in Canada, often in the form of a Canadian “wrapper” (including related fees and
expenses of Canadian counsel to the Underwriters); (i) the investor presentations on any “road
show” undertaken in connection with the marketing of the Stock, including, without limitation,
expenses associated with any electronic roadshow, travel and lodging expenses of the
representatives and officers of the Company and the cost of any aircraft chartered in connection
with the road show; and (j) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as provided in this Section
6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Stock which they may sell and the expenses
of advertising any offering of the Stock made by the Underwriters.
7. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding or examination for such purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to
such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure
Package, or any amendment or supplement thereto, contains an untrue statement of a fact
which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, is
material or omits to state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
-18-
statements therein (except in the case of the Registration Statement, in light of the
circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Stock, the Registration Statement, the Prospectus
and any Issuer Free Writing Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Akerman Senterfitt shall have furnished to the Representative its written opinion,
as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, substantially in the form
attached hereto as Exhibit B-1.
(e) Xxxx Xxxxxx, Senior Vice President, General Counsel and Secretary of the Company,
shall have furnished to the Representative his written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representative, substantially in the form attached hereto as Exhibit
C-1.
(f) The Representative shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel
for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to
the issuance and sale of the Stock, the Registration Statement, the Prospectus and the
Pricing Disclosure Package and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received
from Xxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the Representative,
addressed to the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants with respect to the Company for the year ended December 31,
2006 within the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial
information is given in the most recent Preliminary Prospectus, as of a date not more than
three days prior to the date hereof), the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of Xxxxx Xxxxxxxx LLP referred to in the preceding
paragraph and delivered to the Representative concurrently with the execution of this
Agreement, (the “Xxxxx Xxxxxxxx initial letter”) the Company shall have
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furnished to the Representative a letter (the “Xxxxx Xxxxxxxx bring-down letter”) of
such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming
that they are independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the Xxxxx Xxxxxxxx bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three days prior to the date of the
Xxxxx Xxxxxxxx bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the Xxxxx Xxxxxxxx initial letter and
(iii) confirming in all material respects the conclusions and findings set forth in the
Xxxxx Xxxxxxxx initial letter.
(i) At the time of execution of this Agreement, the Representative shall have received
from Ernst & Young LLP a letter, in form and substance satisfactory to the Representative,
addressed to the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants with respect to the Company for the fiscal years ended
January 2, 2005 and January 1, 2006 within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(j) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representative concurrently with the execution of this
Agreement, (the “E&Y initial letter”) the Company shall have furnished to the Representative
a letter (the “E&Y bring-down letter”) of such accountants, addressed to the Underwriters
and dated such Delivery Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the E&Y bring-down letter (or, with
respect to matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not more than three
days prior to the date of the E&Y bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by the E&Y initial
letter and (iii) confirming in all material respects the conclusions and findings set forth
in the E&Y initial letter.
(k) At the time of execution of this Agreement, the Representative shall have received
from Ernst & Young LLP a letter, in form and substance satisfactory to the Representative,
addressed to the Underwriters and dated the date hereof (i) confirming that they are
independent public accountants with respect to CentraCore Properties Trust (f/k/a
Correctional Properties Trust) (“CPT”) for the fiscal years ended December 31,
-20-
2003, 2004, 2005 and 2006 within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(l) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representative concurrently with the execution of this
Agreement, (the “CPT initial letter”) the Company shall have furnished to the Representative
a letter (the “CPT bring-down letter”)of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the CPT bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than three days
prior to the date of the CPT bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the CPT initial
letter and (iii) confirming in all material respects the conclusions and findings set forth
in the CPT initial letter.
(m) The Company shall have furnished to the Representative a certificate, dated such
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct on and as of such Delivery Date, and the Company has complied
with all its agreements contained herein and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus
and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the
applicable Delivery Date, or (3) the Pricing Disclosure Package (together with the
information on Schedule 3 hereto), as of the Applicable Time, did not and do
not contain any untrue statement of a material fact and did not and do not omit to
state a material fact required to be stated therein or necessary to make the
statements therein (except in the case of the Registration Statement, in
-21-
the light of the circumstances under which they were made) not misleading, and
(B) since the Effective Date, no event has occurred that should have been set forth
in a supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth;
(n) Except as described in or contemplated by the most recent Preliminary Prospectus,
(i) neither the Company nor any of its subsidiaries shall have sustained, since the date of
the latest audited financial statements included or incorporated by reference in the most
recent Preliminary Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, or (ii) since such date, there
shall not have been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations, stockholders’
equity, properties, management, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is,
in the reasonable judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Stock being delivered on such Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company’s debt securities or preferred stock by any
“nationally recognized statistical rating organization” (as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations), and (ii) no such
organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s debt securities or
preferred stock.
(p) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on the financial
markets in the United States shall be such), as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public offering or delivery
of the Stock being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
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(q) The Stock shall have been listed on the New York Stock Exchange.
(r) The Lock-Up Agreements between the Representative and the officers and directors of
the Company set forth on Schedule 2, delivered to the Representative on or before
the date of this Agreement, shall be in full force and effect on such Delivery Date.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its directors,
officers and employees and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales of Stock),
to which that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any
Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any “free writing prospectus” (as
defined in Rule 405) used or referred to by any Underwriter, (D) any “road show” (as defined
in Rule 433) not constituting an Issuer Free Writing Prospectus) (a “Non-Prospectus Road
Show” or (E) any Blue Sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company for use therein)
specifically for the purpose of qualifying any or all of the Stock under the securities laws
of any state or other jurisdiction (any such application, document or information being
hereinafter called a “Blue Sky Application”), (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, any material fact
required to be stated therein or necessary to make the statements therein (except in the
case of the Registration Statement, in light of the circumstances under which they were
made) not misleading or (iii) any act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon matters covered by clause
(i) or (ii) above (provided that the Company shall not be liable under this clause (iii) to
the extent that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each such
director, officer, employee or controlling person promptly upon demand for any legal or
other
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expenses reasonably incurred by that Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any Blue Sky Application, in reliance upon and
in conformity with written information concerning such Underwriter furnished to the Company
through the Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information consists solely of the information specified in Section 8(e).
The foregoing indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any director, officer, employee or controlling
person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, its directors, officers and employees, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or
in any Non-Prospectus Road Show or Blue Sky Application, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show or Blue Sky Application, any material fact required to be stated
therein or necessary to make the statements therein (except in the case of the Registration
Statement, in light of the circumstances under which they were made) not misleading, but in
each case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the Representative
by or on behalf of that Underwriter specifically for inclusion therein, which information is
limited to the information set forth in Section 8(e). The foregoing indemnity agreement is
in addition to any liability that any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify the
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indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the right to employ
counsel to represent jointly the indemnified party and those other indemnified parties and
their respective directors, officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be sought by the
indemnified parties under this Section 8 if (i) the indemnified party and the indemnifying
party shall have so mutually agreed; (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii)
the indemnified party and its directors, officers, employees and controlling persons shall
have reasonably concluded that there may be legal defenses available to them that are
different from or in addition to those available to the indemnifying party; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the
indemnified parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and representation
of both sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the indemnified party, or (ii)
be liable for any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) and
8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof, (i) in such
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proportion as shall be appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other, from the offering of the Stock
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, on the one hand, and the
Underwriters, on the other, with respect to the statements or omissions that resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other, with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the Company, as set
forth in the table on the cover page of the Prospectus, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters
with respect to the shares of the Stock purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company
or the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contributions pursuant
to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the net proceeds from the
sale of the Stock underwritten by it exceeds the amount of any damages that such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges and agrees that the
statements regarding delivery of shares by the Underwriters set forth on the cover page of,
and the concession and reallowance figures and the paragraph relating to stabilization by
the Underwriters appearing under the caption “Underwriting” in the most recent Preliminary
Prospectus and the Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto.
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9. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Stock that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of shares of the Firm
Stock set forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of shares of the Firm Stock set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Stock on
such Delivery Date if the total number of shares of the Stock that the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of the Stock that it
agreed to purchase on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock to be purchased on
such Delivery Date. If the remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the shares that the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with respect to any Option
Stock Delivery Date, the obligation of the Underwriters to purchase, and of the Company to sell,
the Option Stock) shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the payment of expenses to
the extent set forth in Sections 6 and 11. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Stock that a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company for damages caused by its default. If other Underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the Representative or the
Company may postpone the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representative by notice given to and received by the Company prior to delivery of and payment for
the Firm Stock if, prior to that time, any of the events described in Sections 7(n), 7(o) and 7(p)
shall have occurred or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters’ Expenses. If the Company shall fail to tender the Stock
for delivery to the Underwriters by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any other condition to the
Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled for
any reason or (b) the Underwriters shall decline to purchase the Stock for any reason permitted
under this Agreement, the Company will reimburse the
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Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase
of the Stock, and upon demand the Company shall pay the full amount thereof to the Representative.
If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account
of those expenses.
12. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Underwriters’ investment
banking divisions. The Company acknowledges that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
13. No Fiduciary Duty. The Company acknowledges and agrees that in connection with this
offering, the sale of the Stock or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on
the one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are not acting as
advisors, expert or otherwise, to the Company, including, without limitation, with respect to the
determination of the public offering price of the Stock, and such relationship between the Company,
on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on
arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the
Company shall be limited to those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ from those of the
Company. The Company hereby waives any claims that the Company may have against the Underwriters
with respect to any breach of fiduciary duty in connection with this offering.
14. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Registration (Fax: 000-000-0000), with a copy, in the case of
any notice pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 000 Xxxx
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Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000) and
to Banc of America Securities LLC, Banc of America Securities LLC, 0 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, (Fax: 000-000-0000), Attention:
Syndicate Department with a copy to, Banc of America Securities LLC, 0 Xxxx
00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000, Attention: ECM Legal;
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: Xxxx Xxxxxx (Fax: 000-000-0000), with a copy to Akerman Senterfitt, Xxx
Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention: Xxxx Gordo
(Fax: 000-000-0000);
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by Xxxxxx Brothers Inc. and Banc of America
Securities LLC.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those persons, except that (A)
the representations, warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the directors, officers and employees of
the Underwriters and each person or persons, if any, who control any Underwriter within the meaning
of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the persons referred to
in this Section 15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Stock
and shall remain in full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
17. Definition of the Terms “Business Day” and “Subsidiary.” For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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19. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, THE GEO GROUP, INC. |
||||
| By: | /s/ Xxxx X. X’Xxxxxx | |||
| Name: | Xxxx X. X’Xxxxxx | |||
| Title: | Senior Vice President — Finance and Chief Financial Officer |
|||
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Accepted:
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Banc of America Securities LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
of the several Underwriters named
in Schedule 1 hereto
| Xxxxxx Brothers Inc. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Authorized Representative | ||||
| Banc of America Securities LLC |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Authorized Representative | ||||
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SCHEDULE 1
| Number of Shares | ||||
| Underwriters | of Firm Stock | |||
Xxxxxx Brothers Inc. |
1,674,375 | |||
Banc of America Securities LLC |
1,674,375 | |||
First Analysis Securities Corporation |
475,000 | |||
Avondale Partners, LLC |
475,000 | |||
Xxxxxx & Company LLC |
142,500 | |||
BNP Paribas Securities Corp. |
118,750 | |||
Comerica Securities, Inc. |
71,250 | |||
HSBC Securities (USA) Inc. |
47,500 | |||
Jesup & Xxxxxx Securities Corp. |
47,500 | |||
Fortis Securities LLC |
23,750 | |||
Total |
4,750,000 | |||
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SCHEDULE 2
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Palms
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Palms
Xxxx X. Xxxxxx
Officers
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. X’Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. X’Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
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SCHEDULE 3
| 1. | Public offering price: $43.99 per share |
| 2. | Number of shares offered: 4,750,000 |
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LOCK-UP LETTER AGREEMENT
Xxxxxx Brothers Inc.
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
to the Underwriting Agreement
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule 1
to the Underwriting Agreement
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the “Underwriters”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by
the Underwriters of shares (the “Stock”) of Common Stock, par value $0.01 per share (the
“Common Stock”), of The GEO Group, Inc., a Florida corporation (the “Company”), and that the
Underwriters propose to reoffer the Stock to the public (the “Offering”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of Xxxxxx Brothers Inc. and Banc of America Securities LLC, on behalf of the
Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge,
or otherwise dispose of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future of) any shares of
Common Stock (including, without limitation, shares of Common Stock that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of
any options or warrants) or securities convertible into or exercisable or exchangeable for Common
Stock (other than the sale by directors, executive officers and employees of up to an aggregate of
55,510 shares of Stock (including restricted Stock) at any time, in accordance with federal
securities laws) and provided that such shares will be adjusted upward or downward for any
reclassification, recapitalization, reorganization, stock split, reverse stock split, exchange of
shares, stock dividend or other distribution payable in capital stock in accordance with Section
5(f) of the Company’s 2006 Stock Incentive Plan, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3)
make any demand for or exercise any right or cause to be filed a registration statement, including
any amendments thereto, with respect to the registration of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock or any other securities
of the Company or (4) publicly disclose the intention to do
-36-
any of the foregoing, for a period commencing on the date hereof and ending on the
90th day after the date of the Prospectus relating to the Offering (such 90-day period,
the “Lock-Up Period”).
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event, unless waive such
extension in writing. The undersigned hereby further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement to and including the
34th day following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as such may have been extended
pursuant to this paragraph) has expired.
In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to
decline to make any transfer of securities if such transfer would constitute a violation or breach
of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies the Underwriters that it does not intend to
proceed with the Offering, if the Underwriting Agreement does not become effective, or if the
Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Stock, the undersigned will be
released from its obligations under this Lock-Up Letter Agreement.
The
undersigned understands that the Company and the Underwriters will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the Underwriters.
[Signature page follows]
-2-
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
| Very truly yours, |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
Dated:
-3-
Exhibit B-1
FORM OF OPINION OF ISSUER’S COUNSEL
B-1-1
Exhibit C-1
FORM OF OPINION OF GENERAL COUNSEL
C-1-1
