Exhibit 1.1
4,800,000 SHARES
GEVITY HR, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
May 13, 2004
CREDIT SUISSE FIRST BOSTON LLC ("CSFB")
XXXXXX BROTHERS INC. ("XXXXXX")
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx,. N.Y. 10019
Dear Sirs:
1. Introductory. Gevity HR, Inc., a Florida corporation ("COMPANY")
proposes to issue and sell 1,750,000 shares of its common stock, par value $0.01
per share (the "SECURITIES") and the stockholders listed in Schedule A hereto
(all of such persons listed on Schedule A, the "SELLING STOCKHOLDERS") propose
severally to sell an aggregate of 3,050,000 outstanding shares of the Securities
(such 4,800,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). Certain of the Selling Stockholders identified on Schedule A (the
"OPTIONAL SELLING STOCKHOLDERS") also propose to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 720,000 additional
outstanding shares of the Company's Securities, as set forth below (such
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES").
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES". "SERIES A SELLING STOCKHOLDERS" and "MANAGEMENT
SELLING STOCKHOLDERS" shall have the meanings assigned to such terms on Schedule
A hereto. The Company and the Selling Stockholders hereby agree 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 that:
(i) A registration statement (No. 333-114705) 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 Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (B) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, 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
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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, including all material incorporated by
reference in such prospectus, 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 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, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Florida, 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
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conduct of its business requires such qualification, except where the
failure to be so qualified 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 ("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated
or formed and is an existing corporation, limited liability company or
partnership in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate,
partnership 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 would not individually or in the
aggregate have a Material Adverse Effect; 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, membership interests or partnership interests,
as applicable, of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(v) 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 the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities.
(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) 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 other than (a) the
Securities Purchase Agreement dated as of March 25, 2002 between the
Company and Xxxx Xxxx and (b) the Registration Rights Agreement dated
as of June 6, 2003 among the Company and the Series A Selling
Stockholders.
(viii) The Securities have been approved for listing subject
to notice of issuance on the Nasdaq Stock Market's National Market.
(ix) 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 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.
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(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 or
order of any governmental agency or body 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 all other properties 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 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 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 internal employees of the
Company or any subsidiary exists or, to the knowledge of the Company,
is imminent that might 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
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relating to any environmental laws, which violation, 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, to the Company's knowledge,
threatened or 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 and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(xix) 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.
(xx) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(xxii) The Company and each of 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; and (iii) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxiii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning
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of Section 517.075, Florida Statutes and the Company agrees to comply
with such Section if prior to the completion of the distribution of the
Offered Securities it commences doing such business.
(xxiv) The human resources outsourcing client portfolio of
EPIX Holdings Corporation, a Delaware corporation ("EPIX"), that was
acquired from EPIX and certain of its subsidiaries on March 26, 2004
(the "EPIX ACQUISITION"), does not constitute a "significant
subsidiary" of the Company as defined in Rule 1-02 of Regulation S-X,
after substituting "30%" for all instances of "10%" within such rule.
(xxv) In connection with the EPIX Acquisition on March 26,
2004, the Company was assigned all of EPIX's client service agreements,
covering approximately 2,000 clients with approximately 30,000 client
employees. Since such date, the number of these clients and client
employees has not in each case decreased by more than 10% from the
numbers stated in the preceding sentence. There has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other) or
results of operations of the business we acquired from EPIX on March
26, 2004 since that date.
(b) Each Selling Stockholder severally (as to itself only)
represents and warrants to, and agrees with, the several Underwriters
that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, 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 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 neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or
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will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. The two preceding sentences (i)
with respect to the Management Selling Stockholders (other than Xxxx X.
Xxxxxxx or the Xxxxxxx Charitable Remainder Trust), 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) and (ii) with respect to the
Series A Selling Stockholders and Xxxx X. Xxxxxxx and the Xxxxxxx
Charitable Remainder Trust, (x) are limited to requirements of the Act
and the Rules and Regulations applicable to statements furnished to the
Company by the Selling Stockholders in writing and (y) 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 Series A Selling Stockholder specifically for
use therein, it being understood and agreed that the only such
information is (a) the Series A Selling Stockholder Information
described in Section 7(b) hereof with respect to the Series A Selling
Stockholders and (b) the name of such Selling Stockholder, the number
of Offered Securities to be offered by such Selling Stockholder and the
information which appears under the caption "Principal and Selling
Stockholders" in the Prospectus, with respect to Xxxx X. Xxxxxxx and
the Xxxxxxx Charitable Remainder Trust.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $20.445 per share, that
number of Firm Securities (rounded up or down, as determined by the
Representatives in their discretion, in order to avoid fractions) obtained by
multiplying 1,750,000 Firm Securities in the case of the Company and the number
of Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto, in the case of a Selling Stockholder, in each case by a
fraction the numerator of which is the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule B hereto and the denominator
of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with American Stock Transfer
& Trust Company, as custodian ("CUSTODIAN"). Each Selling Stockholder agrees
that the shares represented by the certificates held in custody for the Selling
Stockholders under such Custody Agreements are subject to the
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interests of the Underwriters hereunder, that the arrangements made by the
Selling Stockholders for such custody are to that extent irrevocable, and that
the obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the 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.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of Gevity HR, Inc. in the case of 1,750,000 shares of Firm Securities
and each of the applicable Selling Stockholders in the case of 3,050,000 shares
of Firm Securities, at 9:00 A.M., New York time, on May 19, 2004, or at such
other time not later than seven full business days thereafter as the
Representatives 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 Firm Securities will be delivered through the facilities of the
Depository Trust Company, in such denominations and registered in such names as
the Representatives request. The closing will be held at the offices of Cravath,
Swaine & Xxxxx LLP.
In addition, upon written notice from the Representatives given to the
Company and the Optional Selling Stockholders from time to time not more than 30
days subsequent to the date of the Prospectus (and not earlier than the First
Closing Date), 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 Optional 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 Optional 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
the Representatives to eliminate fractions). Such Optional Securities shall be
purchased from each Optional 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 the Representatives 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 the Representatives to the Company and the Optional 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
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Closing Date and each Optional Closing Date, if any, being sometimes referred to
as a "CLOSING DATE"), shall be determined by the Representatives (with two
business days' notice to the Company and the Optional Selling Shareholders) but
shall be not later than five full business days after written notice of election
to purchase Optional Securities is given and shall not be earlier than the First
Closing Date. The Custodian will deliver the Optional Securities being purchased
on each Optional Closing Date to the Representatives 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 the Representatives drawn to the order of each of the
Selling Stockholders, 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 the Representatives request upon reasonable notice (not less than
one business day) 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. (a) The Company agrees with the
several Underwriters and the Selling Stockholders that:
(i) 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 the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise the Representatives 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 the Representatives.
(ii) The Company will advise the Representatives 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 the Representative's consent; and the Company
will also advise the Representatives 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
10
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.
(iii) 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 the Representatives 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
the Representatives' 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.
(iv) 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.
(v) The Company will furnish to the Representatives copies of
each Registration Statement (three 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 the Representatives
request. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents in accordance with
Section 5(b).
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(vii) For a period of 90 days after the date of the initial
public offering of the Offered Securities, 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 the Representatives.
11
(b) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions as
the Representatives designate 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, for
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities,
including one-half of the cost of any private aviation used 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 reasonable expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters. The foregoing
shall not (i) restrict the ability of the Company and each Selling
Stockholder, vis a vis each other, to enter into any agreement with
each other party allocating expenses among such parties in whatever
manner such parties deem appropriate or (ii) supersede or otherwise
affect any agreement that the Company and the Selling Stockholders, vis
a vis each other, already have regarding allocating expenses.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Deloitte & Touche LLP in form and substance reasonably
satisfactory to the Representatives.
For purposes of this subsection (a) and subsection (b) below, (i) if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, "REGISTRATION
STATEMENTS" shall mean the initial registration statement as proposed
to be amended by the amendment or post-effective amendment to be filed
shortly prior to its Effective Time, (ii) if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, "REGISTRATION
STATEMENTS" shall mean the Initial Registration Statement and the
additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall mean
the prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be
12
deemed included in the Registration Statements for purposes of this
subsection (a) and subsection (b) below.
(b) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of KPMG LLP in form and substance reasonably satisfactory to the
Representatives.
(c) 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 the Representatives. 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 the Representatives. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated
by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities 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 Representatives, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the Nasdaq Stock Market's
National Market, 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;
13
(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 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 Representatives,
the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
the Offered Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Florida, 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 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 would not
individually or in the aggregate have a Material Adverse
Effect;
(ii) Each subsidiary of the Company has been duly
incorporated or formed and is an existing corporation, limited
liability company or partnership in good standing under the
laws of the jurisdiction of its incorporation or formation,
with power and authority (corporate, partnership 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
would not individually or in the aggregate have a Material
Adverse Effect; all of the issued and outstanding capital
stock, membership interests or partnership interests, as
applicable, 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;
(iii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
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 the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(iv) 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
14
pursuant to any other registration statement filed by the
Company under the Act, other than (a) the Securities Purchase
Agreement dated as of March 25, 2002 between the Company and
Xxxx Xxxx and (b) the Registration Rights Agreement dated as
of June 6, 2003 among the Company and the Series A Selling
Stockholders;
(v) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(vi) 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 for the
consummation of the transactions contemplated by this
Agreement or the Custody 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;
(vii) 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 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 in an annex to such opinion 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;
(viii) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or
any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act and
the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such
Closing Date, contained any untrue statement of a material
fact or omitted to
15
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; or
that the Prospectus or any amendment or supplement thereto, as
of its issue date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the
Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present 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 as exhibits to a Registration
Statement which are not described and filed 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; and
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxx & Xxxxx LLP, counsel for Frontenac VIII
Limited Partnership, Frontenac Masters VIII Limited Partnership and
BVCF IV, L.P., substantially in the form attached hereto as Exhibit A.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxx X. Xxxxxx, Chief Legal Officer for SunTrust
Capital Markets Inc., an affiliate of SunTrust Equity Funding LLC,
substantially in the form attached hereto as Exhibit B.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel
for C&B Capital, L.P. and each of the Management Selling Stockholders,
substantially in the form attached hereto as Exhibit C.
(i) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxx X. Xxxxxxx, General Counsel to the
Company, in form and substance reasonably satisfactory to the
Representatives.
(j) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel to the
Company, in form and substance reasonably satisfactory to the
Representatives.
(k) The Representatives 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 Representatives may require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Cravath, Swaine & Xxxxx LLP may rely as to the
incorporation of the Company and all other matters governed by Florida
law upon the opinion of Powell, Goldstein, Xxxxxx & Xxxxxx LLP referred
to above.
16
(l) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in the Prospectus or as described in such certificate.
(m) The Representatives shall have received a letter, dated
such Closing Date, of Deloitte & Touche 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.
(n) The Representatives shall have received a letter, dated
such Closing Date, of KPMG LLP which meets the requirements of
subsection (b) 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.
(o) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each executive
officer and director of the Company and each Selling Stockholder.
(p) The Custodian will deliver to the Representatives 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.
(q) No Underwriter shall have notice of an adverse claim with
respect to the Offered Securities within the meaning of Section 8-102
of the Uniform Commercial Code of the State of Florida.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any
17
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) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, members,
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) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, in each case
with respect to each Series A Selling Stockholder to the extent, but
only to the extent, that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon and in
conformity with written information furnished to the Company by such
Series A Selling Stockholder specifically for use therein, it being
understood and agreed that the only such information furnished to the
Company by such Series A Selling Stockholder consists of the name of
such Series A Selling Stockholder, the number of Offered Securities to
be offered by such Series A Selling Stockholder, the first paragraph
which appears under the caption "Certain Relationships and Related
Transactions", the information relating to such Series A Selling
Stockholder in the compensation and expenses table which appears under
the caption "Underwriting" and all other information with respect to
such Series A Selling Stockholder which appears under the caption
"Principal and Selling Stockholders" in the Prospectus (the "SERIES A
SELLING STOCKHOLDER INFORMATION"); provided, however, that the Series A
Selling Stockholders 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 an Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the
18
only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided further
that in relation to the Series A Selling Stockholders only, 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; and provided, further, that the liability
(or action in respect thereof) under this subsection (b) 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
Offered Securities sold by such Selling Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the Act, and each Selling Stockholder, its 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 to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company and each Selling Stockholder in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter:
the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information
regarding stabilizing transactions contained in the eleventh 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
19
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 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 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 settlement (i) 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
(only to the extent applicable) and (if applicable) 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
(only to the extent applicable) 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
20
subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
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.
Furthermore, the liability of each Selling Stockholder to contribute
under subsection (e) of this Section 7 shall be limited to an amount
equal to (i) the aggregate gross proceeds, after underwriting
commissions and discounts, but before expenses to such Selling
Stockholder from the sale of Offered Securities sold by such Selling
Stockholder hereunder, less (ii) any amounts for which such Selling
Stockholder is liable under Section 7(b) hereof.
(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, to each person, if any, who controls
the Company within the meaning of the Act, and to each director and
officer and each person, if any, who controls a Selling Stockholder
within the meaning of Section 15 of the Act. The foregoing shall not
(i) restrict the ability of the Company and each Selling Stockholder,
vis a vis each other, to enter into any agreement with each other party
or (ii) supersede or otherwise affect any agreement that the Company
and the Selling Stockholders, vis a vis each other, already have.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives 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 the Representatives, 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
21
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 shall remain responsible for the
expenses to be paid or reimbursed by it 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(d), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
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 Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, and c/x
Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Syndicate Group, or, if sent to the Company, will be mailed, delivered or faxed
and confirmed to it at Gevity HR, Inc., 600 000 Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX, 00000, Attention: Xxxxxxx X. Xxxxxxx, Senior Vice President,
General Counsel and Secretary, or, if sent to the Selling Stockholders or any of
them, will be mailed, delivered or faxed and confirmed to the address set forth
below their name on Schedule A hereto; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or faxed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB or Xxxxxx will be binding upon all the Underwriters. American Stock
Transfer & Trust Company will act for the Selling Stockholders in connection
with such transactions, and any action under or in respect of this Agreement
taken by American Stock Transfer & Trust Company will be binding upon all of the
Selling Stockholders.
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.
22
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.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
FRONTENAC VIII LIMITED PARTNERSHIP
By: FRONTENAC VIII PARTNERS, L.P., AS GENERAL PARTNER
By: FRONTENAC COMPANY VIII, L.L.C., AS GENERAL PARTNER
By /s/ Xxxxxx X. Pearl
----------------------------------------------------
Name: Xxxxxx X. Pearl
Title: Member/Managing Director
FRONTENAC MASTERS VIII LIMITED PARTNERSHIP
By: FRONTENAC VIII PARTNERS, L.P., AS GENERAL PARTNER
By: FRONTENAC COMPANY VIII, L.L.C., AS GENERAL PARTNER
By /s/ Xxxxxx X. Pearl
----------------------------------------------------
Name: Xxxxxx X. Pearl
Title: Member/Managing Director
SUNTRUST EQUITY FUNDING, LLC
By /s/ Xxxxxx Xxx Xxxxxx
----------------------------------------------------
Name: Xxxxxx Xxx Xxxxxx
Title: Manager
BVCF IV, L.P.
By: XXXXX STREET PARTNERS LLC, AS GENERAL PARTNER
By /s/ Xxxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
24
C&B CAPITAL, L.P.
By: C&B CAPITAL GP, LLC, AS GENERAL PARTNER
By /s/ Xxxxxx X. Xxxxx III
----------------------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Manager
GEVITY HR, INC.
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
25
CHARITABLE REMAINDER TRUST ESTABLISHED BY XXXXX X.
XXXXXXX III AND XXXX X. XXXXXXX, AS GUARANTORS, DATED
OCTOBER 24, 1997
By: Xxxxx Xxxxxxx XX, Trustee
Xxxxxxxxx Xxxxxxx Xxxxx (f/k/a Xxxxxxxxx X. Xxxxxxx),
Trustee
Xxxxxx Xxxxxxx, Trustee
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
XXXXX X. XXXXXXX
XXXX X. XXXXXXX
XXXX X. XXXXXX
XXXXXX X. XXXX
XXXXXXXX X. XXXXX
XXXXX X. XXXXXXXXX
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
XXXXXXX X. XXXXXXX
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
26
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXX BROTHERS INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By: CREDIT SUISSE FIRST BOSTON LLC
By /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: XXXXXX BROTHERS INC.
By /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
27
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- --------------- -------------
*FRONTENAC VIII LIMITED PARTNERSHIP 2,101,022 558,288
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
*FRONTENAC MASTERS VIII LIMITED PARTNERSHIP 93,752 24,912
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
*SUNTRUST EQUITY FUNDING, LLC 125,403 0
SunTrust Equity Partners
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
*BVCF IV, L.P. 433,536 115,200
x/x Xxxxx Xxxxxx Partners
Xxx Xxxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
*C&B CAPITAL, L.P. 81,287 21,600
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, III
Telephone: (000) 000-0000
Fax: (000) 000-0000
28
+Xxxx X. Xxxxxxx 35,000 0
00 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
+ Charitable Remainder Trust established by Xxxxx X. Xxxxxxx III and 40,000 0
Xxxx X. Xxxxxxx, as Guarantors, dated October 24, 1997
0 Xxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
+Xxxxx X. Xxxxxxx 20,000 0
0 Xxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
+Xxxx X. Xxxxxx 50,000 0
c/o Gevity HR, Inc.
600 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
+Xxxxxxx X. Xxxx 25,000 0
00000 Xxxxxxxxxxx, Xxxxx X
Xxxxxxxxx, Xxxx 00000
+Xxxxxxxx X. Xxxxx 25,000 0
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
+Xxxxx X. Xxxxxxxxx 10,000 0
c/o Gevity HR, Inc.
600 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
+Xxxxxxx X. Xxxxxxx 10,000 0
c/o Gevity HR, Inc.
600 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Total.................................. 3,050,000 720,000
========= =======
* Collectively, the "Series A Selling Shareholders."
+ Collectively, the "Management Selling Shareholders."
29
Exhibit 1.1
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
CREDIT SUISSE FIRST BOSTON LLC............................................... 1,800,000
XXXXXX BROTHERS INC.......................................................... 1,800,000
SUNTRUST CAPITAL MARKETS, INC................................................ 624,000
JMP SECURITIES LLC........................................................... 288,000
XXXX CAPITAL PARTNERS ....................................................... 288,000
Total............................................. 4,800,000
=========
