EXHIBIT 1.1
5,500,000 SHARES
UNIVERSAL TECHNICAL INSTITUTE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
April , 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y.10010-3629
Dear Sirs:
1. Introductory. The stockholders listed in Schedule A hereto (each, a
"SELLING STOCKHOLDER" and collectively, the "SELLING STOCKHOLDERS") propose
severally to sell an aggregate of 5,500,000 outstanding shares ("FIRM
SECURITIES") of the common stock, par value $0.0001 per share ("SECURITIES") of
Universal Technical Institute, Inc., a Delaware corporation ("COMPANY"), and
certain of the Selling Stockholders (each, an "OPTIONAL SELLING STOCKHOLDER" and
collectively, the "OPTIONAL SELLING STOCKHOLDERS") also propose to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
825,000 additional outstanding shares ("OPTIONAL SECURITIES") of the Company's
Securities, in each case as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES". The
Selling Stockholders hereby agree with the Company and with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters and the Selling Stockholders that:
(i) A registration statement (No. 333-114185) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this
Agreement, the additional registration statement means (A) if the
Company has advised the Representative that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representative that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representative that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and none of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, none of such documents will include any untrue
statement of a material fact or will
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omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). The
jurisdictions listed on Schedule C hereto are the only jurisdictions in
which the Company maintains an office or leases property.
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, result in a Material Adverse Effect; the
jurisdictions listed on Schedule C hereto are the only jurisdictions in
which the Company's subsidiaries maintain an office or lease property;
all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except liens and encumbrances, if any,
described in the Prospectus.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities, except such as have been satisfied or waived prior to the
date hereof.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act that have not been satisfied or waived prior to
the date hereof.
(viii) The Securities have been approved for listing on the
New York Stock Exchange.
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(ix) Except as disclosed in the Prospectus, no consent,
approval, authorization, or order of, or filing with, any governmental
agency or body, any accrediting agency or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation,
standard or order of any governmental agency or body, any accrediting
agency or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such
subsidiary.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and title to all material personal property and assets owned by them,
in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any material leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies or accrediting agencies necessary to conduct the
business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that could reasonably be expected to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
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contamination, liability or claim would individually or in the
aggregate have Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(xix) Each of the Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under
the Securities Exchange Act of 1934 (the "EXCHANGE ACT")) that are
effective in ensuring that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the Commission, including,
without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is accumulated and
communicated to the Company's management, including its principal
executive officer or officers and its principal financial officer or
officers, as appropriate to allow timely decisions regarding required
disclosure.
(xx) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally, and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has, and on each Closing Date
hereinafter mentioned will have, valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement
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and to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date, subject to any interests
created by the several Underwriters.
(ii) Such Selling Stockholder has, and on each Closing Date
will have, full legal right, power and authority, and all authorization
and approval required by law, to enter into the Custody Agreement (the
"CUSTODY AGREEMENT") signed by such Selling Stockholder and the
Custodian (as defined below) relating to the deposit of the Offered
Securities to be sold by such Selling Stockholder and the Power of
Attorney ("POWER OF ATTORNEY") appointing each of Xxxxxx X. Xxxxxxx,
Xxxxxxxx X. Xxxxxx and Xxxx X. Xxxxx as such Selling Stockholder's
attorney-in-fact to the extent set forth therein and relating to the
transactions contemplated hereby; and to sell, assign, transfer and
deliver the Offered Securities to be sold by such Selling Stockholder
in the manner provided herein and therein.
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by such Selling Stockholder for the consummation
of the transactions contemplated by the Custody Agreement or this
Agreement in connection with the sale of the Offered Securities sold by
such Selling Stockholder, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(v) The Power of Attorney and related Custody Agreement with
respect to such Selling Stockholder have been duly authorized, executed
and delivered by such Selling Stockholder and constitute valid and
legally binding obligations of such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(vi) The execution, delivery and performance of the Custody
Agreement and this Agreement and the consummation of the transactions
therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any statute, any rule or regulation governing
transactions of this type or any order applicable to such Selling
Stockholder of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over such Selling Stockholder or any of
its properties, (2) any material agreement or material instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or (3) the charter or by-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, the trust agreement of such Selling
Stockholder if such Selling Stockholder is a trust or any other
constituent documents of such Selling Stockholder.
(vii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations did not include, or will not include,
any untrue statement of a
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material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. Notwithstanding any inference to the contrary,
the two preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by
such Selling Stockholder specifically for use therein.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(ix) At any time during the period during which a prospectus
relating to the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or dealer, if there
is any change in the information referred to in Section 2(b)(vii) with
respect to a Selling Stockholder, such Selling Stockholder will
immediately notify the Representative of such change.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $ per share, that number of Firm Securities (rounded up or
down, as determined by Credit Suisse First Boston LLC ("CSFB") in its
discretion, in order to avoid fractions) obtained by multiplying the number of
Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto by a fraction the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with HSBC Bank USA, as
custodian ("CUSTODIAN"). Each Selling Stockholder agrees, severally and not
jointly, that the shares represented by the certificates held in custody for
such Selling Stockholder under such Custody Agreement are subject to the
interests of the Underwriters hereunder, that the arrangements made by such
Selling Stockholder for such custody are to that extent irrevocable, and that
the obligations of such Selling Stockholder hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
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The Custodian will deliver the Firm Securities to the Representative
for the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFB drawn to the order of the Custodian for the
accounts of the Selling Stockholders, at the office of Cravath, Swaine & Xxxxx
LLP, at 10:00 A.M., New York time, on April , 2004, or at such other time not
later than seven full business days thereafter as CSFB and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFB requests and will be made available for
checking and packaging at the above office of Cravath, Swaine & Xxxxx LLP at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"NUMBER OF OPTIONAL SECURITIES TO BE SOLD" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFB to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Stockholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFB to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFB to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFB drawn to
the order of the Custodian, for the accounts of the Selling Stockholders, for
such Optional Securities at the above office of Cravath, Swaine & Xxxxx LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFB requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of Cravath, Swaine & Xxxxx LLP at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFB, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day
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following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFB promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFB.
(b) The Company will advise CSFB and each Selling Stockholder
promptly of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related prospectus or
the Initial Registration Statement, the Additional Registration
Statement (if any) or the Prospectus and will not effect such amendment
or supplementation without CSFB's consent; and the Company will also
advise CSFB promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFB and each Selling Stockholder of
such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither CSFB's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representative and each
Selling Stockholder copies of each Registration Statement (five of
which will be signed and will include all exhibits), each related
preliminary prospectus, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CSFB requests. The Prospectus shall be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
9
(f) The Company will use its best efforts to arrange for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFB designates and will continue such qualifications
in effect so long as required for the distribution; provided that the
Company will not be required to qualify to do business in any
jurisdiction in which it is not now qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now subject to such service of
process.
(g) For a period of 90 days after the date of the Prospectus
(the "LOCK-UP PERIOD"), the Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act relating to,
any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFB,
except (i) issuances of Securities pursuant to the exercise of warrants
or options, in each case outstanding on the date hereof, or (ii) grants
of employee stock options or purchases by employees pursuant to the
terms of a plan in effect on the date hereof and described in the
Prospectus.
(h) The Company and each Selling Stockholder agree, severally
and not jointly, with the several Underwriters that the Company and
such Selling Stockholder will pay, severally and not jointly, all
expenses incident to the performance of the obligations of the Company
and the respective Selling Stockholders, as the case may be, under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB designates and the printing of memoranda relating thereto, for the
filing fee incident to the review by the National Association of
Securities Dealers, Inc. of the Offered Securities, half the cost of
any aircraft chartered in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities (the "AIRCRAFT")
(it being agreed that the Underwriters shall bear the reasonable cost
of any hotel, meal or other travel expenses (except the cost of
chartering the Aircraft, of which the Underwriters will pay half) of
the Company's officers and employees and any other necessary and
reasonable expenses of the Company in connection with attending or
hosting such meetings), for any transfer taxes on the sale by the
Selling Stockholders of the Offered Securities to the Underwriters and
for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters. Such expenses shall be allocated as follows:
(i) the Company shall pay (A) all fees and expenses of counsel
representing the Company in connection with the performance of
its obligations under this Agreement, including, without
limitation, Xxxxx Xxxx LLP and Dow, Xxxxxx & Xxxxxxxxx, PLLC;
(B) all fees and expenses of the Company's independent
accountants incurred in connection with the performance of the
Company's obligations under this Agreement; (C) twenty-five
percent (25%) of the cost of chartering the Aircraft; and (D)
fifty percent (50%) of all other fees related to the
registration and offering of the Offered Securities,
including, but not limited to, filing fees payable to the
Commission, state securities commissions, the National
Association of Securities Dealers, Inc., The New York Stock
Exchange or similar agencies outside the United States,
printing and distribution costs, fees payable to the Custodian
under the Custody Agreements, and transfer agent fees and
charges; and
(ii) each Selling Stockholder shall pay, severally and not
jointly, (A) all fees and expenses of counsel representing
such Selling Stockholder in connection with the performance of
such Selling Stockholder's obligations under this Agreement
and all underwriting discounts and commissions received by the
Underwriters with respect to the Offered Securities sold by
such Selling Stockholder under this Agreement, and any
transfer taxes payable with respect to the Offered Securities
sold by such Selling Stockholder to the Underwriters; and (B)
such Selling Stockholder's pro rata portion (determined by
dividing (I) the total number of Offered Securities sold by
such Selling Stockholder to the
10
Underwriters under this Agreement by (II) the total number of
Offered Securities sold to the Underwriters under this
Agreement) of the following: (x) twenty-five percent (25%) of
the cost of chartering the Aircraft; and (y) fifty percent
(50%) of all other fees related to the registration and
offering of the Offered Securities, including, but not limited
to, filing fees payable to the Commission, state securities
commissions, the National Association of Securities Dealers,
Inc., The New York Stock Exchange or similar agencies outside
the United States, printing and distribution costs, fees
payable to the Custodian under the Custody Agreements, and
transfer agent fees and charges.
(i) Each Selling Stockholder, other than Worldwide Training
Group, LLC ("WORLDWIDE"), agrees, for the Lock-up Period, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such
other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of CSFB, provided, however,
that this subsection shall not apply to (i) the exercise of options
granted to such Selling Stockholder or (ii) any Securities acquired by
such Selling Stockholder in the open market. Each Selling Stockholder
further agrees that (x) without the prior written consent of CSFB, it
will not, during the Lock-up Period, make any demand for or exercise
any right with respect to, the registration of any Securities or any
security convertible into or exercisable or exchangeable for the
Securities and (y) any Securities received upon the exercise of options
will be subject to the restrictions contained in this subsection.
Notwithstanding the foregoing, a transfer of Securities to a family
member or trust may be made, provided the transferee agrees to be bound
in writing by the terms of this subsection.
(j) Worldwide agrees, for the Lock-up Period, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such
other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of CSFB, provided, however,
that this subsection shall not apply to (i) the exercise of options
granted to such Selling Stockholder or (ii) any Securities acquired by
such Selling Stockholder in the open market. Worldwide further agrees
that (x) without the prior written consent of CSFB, it will not, during
the Lock-up Period, make any demand for or exercise any right with
respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities and
(y) any Securities received upon the exercise of options will be
subject to the restrictions contained in this subsection.
Notwithstanding the foregoing, Worldwide may transfer any Securities
held by it (i) to any of its members or any shareholder, partner or
member of its members, (ii) to any affiliate of Worldwide or any
member, (iii) as a bona fide gift or gifts, (iv) to any trust, (v) to
any entity directly or indirectly controlled by or under common control
with Worldwide or any member and (vi) to any Immediate Family Member
(as defined below) of any member of Worldwide or any member of any such
member, provided that, in each case, such transferee agrees to be bound
in writing by the terms of this subsection. For the purpose of the
preceding sentence, "IMMEDIATE FAMILY MEMBER" means any relationship by
blood, marriage or adoption, not more remote than first cousin.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
11
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 100, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net sales or net
operating income in the total or per share amounts of
consolidated income before extraordinary items or net
income;
except in all cases set forth in clause above for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
12
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFB. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have
been consented to by CSFB. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the
Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities or preferred stock of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating
of any debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including
the Representative, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (v) or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium declared
by U.S. Federal or New York authorities; (vii) any major disruption of
settlements of securities or clearance services in
13
the United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representative, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxx Xxxx LLP, counsel for the Company, to the
effect that:
(i) The Company is a corporation validly existing and
in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in the jurisdictions set forth in Schedule C
hereto;
(ii) Each subsidiary of the Company is a corporation
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus; and, based solely on
recently dated good standing certificates from the secretaries
of state of the applicable jurisdictions, each subsidiary of
the Company is duly qualified to do business as a foreign
corporation in good standing in the jurisdictions set forth in
Schedule C hereto; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned
free, to our knowledge, from liens and encumbrances, except
liens and encumbrances disclosed in the Prospectus;
(iii) The Offered Securities and all other
outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus; and, except as disclosed in the Prospectus,
the stockholders of the Company have no preemptive rights with
respect to the Securities except such as have been satisfied
or waived prior to the date hereof;
(iv) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings known to such
counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company 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 Act that have not
been satisfied or waived prior to the date hereof;
(v) Except as disclosed in the Prospectus, no
consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be
obtained or made by the Company or, to the knowledge of such
counsel, any Selling Stockholder for the consummation of the
transactions contemplated by this Agreement or the Custody
Agreement in connection with the issuance or sale of the
Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state
securities laws;
(vi) The execution, delivery and performance of this
Agreement or the Custody Agreement and the consummation of the
transactions herein or therein contemplated will not result in
a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body
14
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument listed on a schedule to be attached to
the opinion of Xxxxx Xxxx LLP contemplated herein, or the
charter or by-laws of the Company or any such subsidiary;
(vii) The Registration Statement is effective under
the Act, the Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, based upon an oral acknowledgement by the staff of
the Commission, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations; the
descriptions in the Registration Statements and Prospectus
(other than those set forth under the headings "Risk Factors -
Risks Related to Our Industry" and "Regulatory Environment")
of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly summarize in all
material respects the information required to be shown; and
such counsel do not know of any legal or governmental
proceedings required to be described in a Registration
Statement or the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in a Registration Statement or the
Prospectus or to be filed (or incorporated by reference) as
exhibits to a Registration Statement which are not described
and filed (or incorporated by reference) as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statements or the Prospectus;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) Except as disclosed in the Prospectus, there are
no pending actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and, to the knowledge of such counsel, no such
actions, suits or proceedings are threatened or contemplated;
and
(x) To the knowledge of such counsel, the Company and
its subsidiaries have not received any notice of infringement
of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely
to the Company or any of its subsidiaries, would individually
or in the aggregate reasonably likely be expected to have a
Material Adverse Effect.
In addition to the matter set forth above, such opinion shall also
include a statement to the effect that, during the preparation of the
Registration Statement and the Prospectus, such counsel has participated in
conference with officers and other representatives of the Company,
representatives of the independent accountants for the Company and
representatives of the underwriters, at which conferences the contents of the
Prospectus, the Registration Statement and related matters were discussed,
reviewed and revised. Based upon such participation but without independent
review or verification, and without assuming responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, nothing has come to such counsel's attention which
causes them to believe that, at the time the Registration Statement became
effective, the Registration Statement or the Prospectus (except as to
15
financial statements and related notes, financial and accounting data and
supporting schedules included therein or omitted therefrom, as to which such
counsel need express no opinion) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein (and with respect to the Prospectus, in
light of the circumstances under which they were made), not misleading, or at
the Closing Date the Registration Statement or Prospectus (except as aforesaid)
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
(and with respect to the Prospectus, in light of the circumstances under which
they were made), not misleading.
(e) The Representative shall have received an opinion, dated
such Closing Date, of Dow, Xxxxxx & Xxxxxxxxx, PLLC, special regulatory
counsel for the Company, to the effect that:
(i) The statements contained in the Prospectus under
the headings "Risk Factors - Risks Related to Our Industry"
and "Regulatory Environment," insofar as they constitute a
summary of legal matters, documents or proceedings with
respect to the operation of postsecondary educational
institutions and the offering of programs of postsecondary
education under Title IV of the Higher Education Act of 1965,
as amended ("HEA"), the statutes of the states in which the
Company's schools are located governing the authorization to
operate postsecondary educational institutions, or the
standards of accreditation of any accrediting agency that
presently accredits any of the Company's schools, are accurate
in all material respects;
(ii) To the knowledge of such counsel, the execution,
delivery and performance of this Agreement by the Company will
not result in a breach or violation of (A) Title IV of the
HEA, (B) any regulation of the U.S. Department of Education
promulgated under Title IV of the HEA, (C) the statutes of the
states in which the Company's schools are located governing
the authorization to operate postsecondary educational
institutions, or (D) the standards of accreditation of any
accrediting agency that presently accredits any of the
Company's schools, except for any such breaches or violations
that, individually or in the aggregate, do not have, and would
not be reasonably likely to have, a Material Adverse Effect;
(iii) To the knowledge of such counsel, except as
disclosed in the Prospectus, the Company and its subsidiaries
have all necessary authorizations, approvals, accreditations
and certifications (collectively, "LICENSES") required for the
Company and such subsidiaries to participate in the federal
aid programs under Title IV of the HEA as described in the
Registration Statement and the Prospectus, except for any
failures to possess any such Licenses that, individually or in
the aggregate, do not have, and are not reasonably likely to
have, a Material Adverse Effect; and
(iv) Except as disclosed in the Prospectus, no
consent, approval, authorization, order, registration or
qualification of, or filing with, the U.S. Department of
Education under Title IV of the HEA, any state agency in any
state in which the Company's schools are located under any
state statute governing the authorization to operate
postsecondary educational institutions, or any accrediting
agency that presently accredits any of the Company's schools
is required for the consummation by the Company of the
transactions contemplated by this Agreement in connection with
the sale of the Securities.
(f) The Representative shall have received an opinion, dated
such Closing Date, from each of (i) (A) Xxxxxxxxx & Xxxxxxx, outside
counsel for the Selling Stockholders that are the distributees of
Charlesbank Voting Trust (the "CHARLESBANK ENTITIES"), (B) Walkers,
Cayman Island counsel for CB Offshore Equity Fund V, L.P., a
Charlesbank Entity, or (C) in-house counsel for the Charlesbank
Entities, such that each Charlesbank Entity is covered substantially by
the opinions set forth in Exhibit A attached hereto, (ii) Mayer, Brown,
Xxxx & Maw LLP, counsel for
16
Selling Stockholder JZ Equity Partners plc and the Selling Stockholders
that are the distributees of UTI/TJC Voting Trust, substantially in the
form of Exhibit B attached hereto, (iii) in-house counsel for Selling
Stockholder Worldwide Training Group, LLC, substantially in the form of
Exhibit C attached hereto and (iv) Xxxxx Xxxx LLP, counsel for the
remaining Selling Shareholders, substantially in the form of Exhibit D
attached hereto.
(g) The Representative shall have received from Cravath,
Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representative may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(h) The Representative shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in the Prospectus or as described in such certificate.
(i) The Representative shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(j) No Underwriter shall have notice of an adverse claim to
the Offered Securities within the meaning of Section 8-105 of the New
York Uniform Commercial Code.
(k) On or prior to the date of this Agreement, the
Representative shall have received lock-up letters from each of the
executive officers and directors of the Company.
(l) The Custodian will deliver to CSFB a letter stating that
they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified
by the United States Treasury Department regulations in lieu thereof)
on or before January 31 of the year following the date of this
Agreement.
The Selling Stockholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each (i) Underwriter, its partners, members, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such
17
losses, claims, damages or liabilities (or actions in respect thereof) (x) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (y) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required by law to be
delivered by such Underwriter in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter and (ii) Selling Stockholder, its partners, members, directors and
officers and each person, if any, who controls such Selling Stockholder within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (x) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (y) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse each Selling Stockholder for any
legal or other expenses reasonably incurred by such Selling Stockholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable to any Selling Stockholder in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
specifically for use therein.
(b) The Selling Stockholders severally, and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
18
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, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, further, however, that each Selling Stockholder shall only be subject
to such liability under this subsection (b) to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission from any
of such documents is based upon and in conformity with written information
provided by such Selling Stockholder specifically for use therein or contained
in a representation or warranty given by such Selling Stockholder in this
Agreement or the Custody Agreement; and provided, further, that with respect to
any untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus the indemnity agreement contained in
this subsection (b) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such Underwriter under
the Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus if the Company
had previously furnished copies thereof to such Underwriter; provided, further,
however, that the liability under this subsection of each Selling Stockholder
shall be limited to an amount equal to the aggregate gross proceeds after
underwriting commissions and discounts, but before expenses, to such Selling
Stockholder from the sale of Securities sold by such Selling Stockholder
hereunder.
(c) Each Underwriter will severally, and not jointly, indemnify and
hold harmless the Company, the directors and officers of the Company, each
person, if any, who controls the Company within the meaning of Section 15 of the
Act, each Selling Stockholder, the directors and officers of each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act against any losses, claims, damages
or liabilities to which such persons may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in the
sixth paragraph under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
19
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) the liability
under this subsection (e) of each Selling Stockholder shall be limited to an
amount equal to the aggregate gross proceeds after underwriting commissions and
discounts, but before expenses, to such Selling Stockholder from the sale of the
Firm and Optional Securities sold by such Selling Stockholder hereunder. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Stockholders' obligations in
this subsection (e) to contribute are several in proportion to their respective
aggregate gross proceeds received after underwriting commissions and discounts,
but before expenses, from the sale of the Firm and Optional Securities sold by
the Selling Stockholders hereunder and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
20
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFB, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "UNDERWRITER" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and each Selling Stockholder shall
remain responsible, severally and not jointly, for the expenses to be paid or
reimbursed by such party pursuant to Section 5 and the respective obligations of
the Company, the Selling Stockholders, and the Underwriters pursuant to Section
7 shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii)
of Section 6(c), the Company and Selling Stockholders will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by the Underwriters in connection with the offering
of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representative at Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group (fax: 000-000-0000), or, if sent to the
Company or any of the Selling Stockholders, will be mailed, delivered or faxed
and confirmed to Universal Technical Institute, Inc., Attention: Xxxxxx X.
Xxxxxxx (fax: 000-000-0000); provided, however, that any notice to an
Underwriter or Selling Stockholder pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter or Selling Stockholder.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters. Each of Xxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxx and
Xxxx X. Xxxxx will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by
Xxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxx and Xxxx X. Xxxxx, or any of them, will be
binding upon all the Selling Stockholders.
21
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
UNIVERSAL TECHNICAL INSTITUTE, INC.
by
----------------------------------------
Name:
Title:
WORLDWIDE TRAINING GROUP, LLC
by
----------------------------------------
Name:
Title:
JZ EQUITY PARTNERS PLC
by
----------------------------------------
Name:
Title:
CHARLESBANK EQUITY FUND V, LIMITED PARTNERSHIP
by
----------------------------------------
Name:
Title:
CB OFFSHORE EQUITY FUND V, L.P.
by
----------------------------------------
Name:
Title:
23
CHARLESBANK EQUITY COINVESTMENT FUND V,
LIMITED PARTNERSHIP
by
----------------------------------------
Name:
Title:
CHARLESBANK COINVESTMENT PARTNERS, LIMITED
PARTNERSHIP
by
----------------------------------------
Name:
Title:
COYOTE TRAINING GROUP, LLC
by
----------------------------------------
Name:
Title:
LEUCADIA INVESTORS, INC.
by
----------------------------------------
Name:
Title:
XXXX X. XXXXXX, XX REVOCABLE TRUST
by
----------------------------------------
Name:
Title:
THE XXXXXX FAMILY TRUST
by
----------------------------------------
Name:
Title:
XXXXX X. XXXXXX, XX. PROFIT SHARING PLAN
by
----------------------------------------
Name:
Title:
24
----------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
----------------------------------------
Name: A. Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxx X. Max
----------------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
25
----------------------------------------
Name: Xxxx Xxxxxxxx
26
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
---------------------------------
Name:
Title:
Acting on behalf of itself and as the Representative of the several
Underwriters.
27
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- --------------- ---------------
Worldwide Training Group, LLC 1,498,874 224,831
JZ Equity Partners plc 924,582 148,311
Charlesbank Equity Fund V, Limited Partnership 1,088,611 163,292
CB Offshore Equity Fund V, L.P. 153,128 22,969
Charlesbank Equity Coinvestment Fund V, Limited Partnership 15,569 2,335
Charlesbank Coinvestment Partners, Limited Partnership 1,363 204
Coyote Training Group, LLC 423,600 63,540
Leucadia Investors, Inc. 231,146 37,078
Xxxx X. Xxxxxx, XX Revocable Trust 247,815 39,752
Xxxxx X. Xxxxxxxxx 198,252 31,801
Xxxxxxxx X. Xxxxxxx 169,931 27,258
A. Xxxxxxx Xxxxxx 140,000 0
Xxxx X. Max 126,578 20,304
The Xxxxxx Family Trust 1,972 14,333
Xxxx X. Xxxxxx 87,380 0
Xxxxxxx X. Xxxx 16,318 2,618
Xxxx Xxxxxxxx 10,879 1,745
Xxxxx X. Xxxxxx, Xx. Profit Sharing Plan 2,719 436
Xxxxxx Xxxxxx 19,674 2,951
Xxxxxxx X. Xxxxxx 52,174 7,826
Xxxxxx X. Xxxxxxx 9,152 1,373
Xxxxxx X. Xxxxxxx 4,435 665
Xxxxxxx X. Xxxxx 21,087 3,163
Xxxxxxxx Xxxxx 14,891 2,234
Xxxxxx Xxxxxxx 3,478 522
Xxxxxxx X. Xxxxxxxxx 14,783 2,217
Xxxxx Xxxxxxx 17,043 2,557
Xxxxxx Xxxxxxx 4,566 685
--------------- ---------------
Total ............................................... 5,500,000 825,000
=============== ===============
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC.................
Banc of America Securities LLC.................
Xxxxxxxxx & Company, Inc.......................
Xxxxxx Xxxxxx Partners LLC.....................
SunTrust Capital Markets, Inc..................
---------------
Total...........................
===============
SCHEDULE C
UNIVERSAL TECHNICAL INSTITUTE, INC.
STATE OF JURISDICTION OF FOREIGN
NAME D/B/A INCORPORATION QUALIFICATION
---- --------------------- ---------------- ---------------------------------
1. Universal Technical Institute, Inc. Delaware Arizona, Florida, Illinois,
Minnesota, New Jersey, New York,
North Carolina, Texas and in
Colorado under a special license.
2. UTI Holdings, Inc. Arizona New York and Washington
3. Universal Technical Institute of Arizona North Carolina
Arizona, Inc.
4. Universal Technical Institute of California North Carolina
California, Inc.
5. U.T.I. of Illinois, Inc. Illinois North Carolina
6. Universal Technical Institute of North Delaware Illinois, Mississippi, North
Carolina, Inc. Carolina and Louisiana under
special license
7. Universal Technical Institute of Texas Florida, Illinois and West
Texas, Inc. Virginia
8. Custom Training Group, Inc. California Arizona
9. The Xxxxxxx Xxxxxx Corporation Clinton Technical Delaware Arizona, Florida, Illinois,
Institute Mississippi, New Jersey and
(Motorcycle & Washington
Marine Mechanics
Institute)
10. Universal Technical Institute of Delaware Arizona and Pennsylvania
Pennsylvania, Inc.
EXHIBIT A
FORM OF OPINION FOR CHARLESBANK ENTITIES
(i) The Selling Stockholder had power and authority under
law to enter into the
Underwriting Agreement, the Custody
Agreement and the Power of Attorney and to sell, assign, transfer and
deliver the Offered Securities delivered by the Selling Stockholder on
such Closing Date in the manner provided therein; and, assuming the
several Underwriters were good faith purchasers and without notice of
any adverse claim, delivery of the certificates for the Offered
Securities sold by the Selling Stockholder pursuant to the
Underwriting
Agreement has passed title thereto to the Underwriters, free and clear
of any adverse claim;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Selling Stockholder under
law or United States federal law or the General Corporation Law of the
State of Delaware for the consummation of the transactions contemplated
by the Custody Agreement or the
Underwriting Agreement in connection
with the sale of the Offered Securities sold by the Selling
Stockholder, except (a) such as have been obtained and made under the
Act, (b) such as may be required under state securities or Blue Sky
laws and (c) such as may be required from the United States Department
of Education, any federal, state or local accrediting agency and any
other entity involved in the regulation or accreditation of educational
institutions;
(iii) The execution, delivery and performance of the Custody
Agreement and the
Underwriting Agreement and the consummation of the
transactions therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any or United States federal statute or
any or United States federal rule, regulation or order known
to such counsel of any governmental agency or body or any court having
jurisdiction over the Selling Stockholder or any of its properties,
other than any statute, rule, regulation or order relating to the
regulation or accreditation of educational institutions, including
Title IV of the Higher Education Act of 1965, as amended, (2) any
material agreement or instrument known to such counsel to which the
Selling Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the properties of the Selling Stockholder is
subject, or (3) the organizational documents of the Selling
Stockholder;
(iv) The Selling Stockholder has duly authorized, executed and
delivered the
Underwriting Agreement, the Power of Attorney and the
Custody Agreement; and
(v) Assuming that the Registration Statement and Prospectus do
not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, each of the Power of Attorney
and the Custody Agreement constitutes the valid and binding obligation
of the Selling Stockholder, enforceable against the Selling Stockholder
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
To the extent that we are passing on the validity and enforceability of the
Power of Attorney and the Custody Agreement and the compliance of the
Underwriting Agreement, the Power of Attorney and the Custody Agreement with
federal and state securities laws, we have necessarily assumed the accuracy,
completeness and fairness of the statements made or included in the Registration
Statement and Prospectus.
EXHIBIT B
FORM OF MAYER, BROWN, XXXX & MAW OPINION
(i) To such counsel's knowledge, each Selling Stockholder had
valid and unencumbered title to the Offered Securities delivered by
such Selling Stockholder on such Closing Date and had full right, power
and authority to enter into the
Underwriting Agreement and to sell,
assign, transfer and deliver the Offered Securities delivered by such
Selling Stockholder on such Closing Date thereunder;
(ii) Each Selling Stockholder had, on such Closing Date, full
legal right, power and authority, and all authorization and approval
required by law, to enter into the Custody Agreement and the Power of
Attorney and to sell, assign, transfer and deliver the Offered
Securities to be sold by such Selling Stockholder in the manner
provided therein and in the
Underwriting Agreement;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by any Selling Stockholder for the consummation
of the transactions contemplated by the Custody Agreement or the
Underwriting Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholders, except such as have been
obtained and made under the Act and such as may be required under state
securities laws;
(iv) The execution, delivery and performance of the Custody
Agreement and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any statute, any rule, or regulation governing
transactions of this type or any order applicable to such Selling
Stockholder of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over such Selling Stockholder or any of
its properties, (2) any material agreement or material instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or (3) the charter or by-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, the trust agreement of such Selling
Stockholder if such Selling Stockholder is a trust or any other
constituent documents of such Selling Stockholder;
(v) Each Selling Stockholder has duly authorized, executed and
delivered the Underwriting Agreement, the Power of Attorney and the
Custody Agreement; and
(vi) Assuming that the Registration Statement and Prospectus
do not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, each of the Power of Attorney
and the Custody Agreement constitutes the valid and binding obligation
of each Selling Stockholder, enforceable against such Selling
Stockholder in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
EXHIBIT C
FORM OF WORLDWIDE TRAINING GROUP, LLC OPINION
(i) The Selling Stockholder had valid and unencumbered title
to the Offered Securities delivered by the Selling Stockholder on such
Closing Date and had full right, power and authority to enter into the
Underwriting Agreement and to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Stockholder on such Closing
Date thereunder; and assuming the several Underwriters were good faith
purchasers and without knowledge of any adverse claim, delivery of the
certificates for the Offered Securities sold by the Selling Stockholder
on such Closing Date thereunder has passed title to such Offered
Securities to the Underwriters, free and clear of any adverse claim;
(ii) The Selling Stockholder had, on such Closing Date, full
legal right, power and authority, and all authorization and approval
required by law, to enter into the Custody Agreement and the Power of
Attorney and to sell, assign, transfer and deliver the Offered
Securities to be sold by the Selling Stockholder in the manner provided
therein and in the Underwriting Agreement;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Selling Stockholder for the consummation
of the transactions contemplated by the Custody Agreement or the
Underwriting Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholders, except such as have been
obtained and made under the Act and such as may be required under state
securities laws;
(iv) The execution, delivery and performance of the Custody
Agreement and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any statute, any rule, or any regulation or order of
any governmental agency or body governing transactions of this type or
any court having jurisdiction over the Selling Stockholder or any of
its properties, (2) any material agreement or material instrument to
which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the properties of the Selling
Stockholder is subject, or (3) the charter or by-laws of any Selling
Stockholder which is a corporation, the partnership agreement of any
Selling Stockholder which is a partnership or any other constituent
documents of any Selling Stockholder;
(v) The Selling Stockholder has duly authorized, executed and
delivered the Underwriting Agreement, the Power of Attorney and the
Custody Agreement; and
(vi) Assuming that the Registration Statement and Prospectus
do not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, each of the Power of Attorney
and the Custody Agreement constitutes the valid and binding obligation
of each Selling Stockholder, enforceable against such Selling
Stockholder in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
EXHIBIT D
FORM OF XXXXX XXXX LLP OPINION
(i) Each Selling Stockholder had valid and unencumbered title
to the Offered Securities delivered by the Selling Stockholder on such
Closing Date and had full right, power and authority to enter into the
Underwriting Agreement and to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Stockholder on such Closing
Date thereunder; and assuming the several Underwriters were good faith
purchasers and without knowledge of any adverse claim, delivery of the
certificates for the Offered Securities sold by the Selling Stockholder
on such Closing Date thereunder has passed title to such Offered
Securities to the Underwriters, free and clear of any adverse claim;
(ii) Each Selling Stockholder had, on such Closing Date, full
legal right, power and authority, and all authorization and approval
required by law, to enter into the Custody Agreement to which the
Selling Stockholder is a party and the Power of Attorney executed by
the Selling Stockholder and to sell, assign, transfer and deliver the
Offered Securities to be sold by the Selling Stockholder in the manner
provided therein and in the Underwriting Agreement;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by any Selling Stockholder for the consummation
of the transactions contemplated by the Custody Agreement or the
Underwriting Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholders, except such as have been
obtained and made under the Act and such as may be required under state
securities laws;
(iv) The execution, delivery and performance of the Custody
Agreement and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Selling Stockholder or any of its properties, (2) any material
agreement or material instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the properties of the Selling Stockholder is subject, or (3) the
charter or by-laws of any Selling Stockholder which is a corporation,
the partnership agreement of any Selling Stockholder which is a
partnership or any other constituent documents of any Selling
Stockholder;
(v) Each Selling Stockholder has duly authorized, executed and
delivered the Underwriting Agreement, the Custody Agreement to which
the Selling Stockholder is a party and the related Power of Attorney;
and
(vi) The Power of Attorney and related Custody Agreement with
respect to each Selling Stockholder constitute valid and legally
binding obligations of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
