Exhibit 1.1
STANDARD PARKING CORPORATION
4,100,000 Shares Common Stock(1)
UNDERWRITING AGREEMENT
______________, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C.
As Representatives of the Several
Underwriters Named in Schedule A
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Standard Parking Corporation ("COMPANY") a
Delaware corporation, has an authorized capital stock consisting of [__________]
shares, $[________] par value, of Common Stock (the "COMMON STOCK"), of which
[________] shares were outstanding as of [____________ ____], 2004, and
[_________] shares, $[________] par value, of Preferred Stock (the "PREFERRED
STOCK"), of which [_________] shares were outstanding as of [_____________
____], 2004. In connection with the offering described herein, the Company will
redeem or otherwise retire all of its outstanding shares of Preferred Stock. The
Company proposes to issue and sell 4,100,000 shares of its authorized but
unissued Common Stock ("FIRM SHARES") to the several underwriters named in
Schedule A, as it may be amended by the Pricing Agreement hereinafter defined
("UNDERWRITERS"), who are acting severally and not jointly. In addition, the
Company and Steamboat Industries LLC (the "SELLING STOCKHOLDER")(2) propose to
grant to the Underwriters an option to purchase up to 615,000 additional
shares of Common Stock ("OPTION SHARES"), as provided in Section 5 hereof. The
Firm Shares and, to the extent such option is exercised, the Option Shares, are
hereinafter collectively referred to as the "SHARES."
You have advised the Company and the Selling Stockholder that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and the Pricing Agreement hereinafter defined has been executed and delivered.
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(1) Plus an option to acquire up to 615,000 additional shares to cover
overallotments.
(2) The Selling Stockholder will only sell shares in the offering described
herein if the Underwriters exercise their option to purchase Option Shares.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholder and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "PRICING AGREEMENT"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company, the Selling Stockholder and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company has agreed to reserve out of the Shares set forth
opposite its name on Schedule A to this Agreement, up to 615,000 Shares for
sale to the Company's business associates and other parties related to or
associated with the Company, as set forth in the Prospectus under the heading
"Underwriting" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Company and its affiliates pursuant to the Directed Share Program are
hereinafter referred to as the "DIRECTED SHARES." Any Directed Shares not orally
confirmed for purchase by any participants in the Directed Share Program by the
end of the business day on which this Agreement is executed will be offered to
the public by the Underwriters as set forth in the Prospectus.
The Company and the Selling Stockholder hereby confirm their agreements
with the Underwriters as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-112652)
and a related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission
("COMMISSION") by the Company in conformity in all material respects with
the requirements of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "1933 ACT;"
unless otherwise specified, all references herein to specific rules are
rules promulgated under the ▇▇▇▇ ▇▇▇); and the Company has so prepared and
has filed such amendments thereto, if any, and such amended preliminary
prospectuses as may have been required to the date hereof. If the Company
has elected not to rely upon Rule 430A, the Company has prepared and will
promptly file an amendment to the registration statement and an amended
prospectus. If the Company has elected to rely upon Rule 430A, it will
prepare and file a prospectus pursuant to Rule 424(b) that discloses the
information previously omitted from the prospectus in reliance upon Rule
430A. There have been or will promptly be delivered to you three signed
copies of such registration statement and amendments, three copies of each
exhibit filed therewith, and conformed copies of such registration
statement and amendments (but without exhibits) and of the related
preliminary prospectus or prospectuses and final forms of prospectus for
each of the Underwriters.
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Such registration statement (as amended, if applicable)
at the time it becomes effective and the prospectus constituting a part
thereof (including the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) and/or Rule 434), as from time to time amended or
supplemented, are hereinafter referred to as the "REGISTRATION STATEMENT,"
and the "PROSPECTUS," respectively, except that if any revised prospectus
shall be provided to the Underwriters by the Company for use in connection
with the offering of the Shares which differs from the Prospectus on file
at the Commission at the time the Registration Statement became or becomes
effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term Prospectus shall refer to
such revised prospectus from and after the time it was provided to the
Underwriters for such use. If the Company elects to rely on Rule 434 of the
1933 Act, all references to "Prospectus" shall be deemed to include,
without limitation, the form of prospectus and the term sheet, taken
together, provided to the Underwriters by the Company in accordance with
Rule 434 of the 1933 Act ("RULE 434 PROSPECTUS"). Any registration
statement (including any amendment or supplement thereto or information
which is deemed part thereof) filed by the Company under Rule 462(b) ("RULE
462(b) REGISTRATION STATEMENT") shall be deemed to be part of the
"Registration Statement" as defined herein, and any prospectus (including
any amendment or supplement thereto or information which is deemed part
thereof) included in such registration statement shall be deemed to be part
of the "Prospectus", as defined herein, as appropriate. The Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder are hereinafter collectively referred to as the
"EXCHANGE ACT."
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus has conformed in all material respects with the requirements of
the 1933 Act and, as of its date, has not included any untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading; and when the Registration Statement became or becomes
effective, and at all times subsequent thereto, up to the First Closing
Date or the Second Closing Date, hereinafter defined, as the case may be,
the Registration Statement, including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to Rule
430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects conform to the
requirements of the 1933 Act, and neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto, included or will
include any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that the Company
makes no representation or warranty as to information contained in or
omitted from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in the preparation thereof.
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(c) The Company and each of the subsidiaries listed on
Schedule B, which includes, without limitation, each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X), (each a "SIGNIFICANT SUBSIDIARY" and collectively the
"SIGNIFICANT SUBSIDIARIES"), have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective places of incorporation, with corporate power and authority to
own their properties and conduct their business as described in the
Prospectus, except where any failure to be in good standing would not have
a material adverse effect upon the condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a whole
(a "MATERIAL ADVERSE EFFECT"); the Company and each of its Significant
Subsidiaries are duly qualified to do business as foreign corporations
under the corporation law of, and are in good standing as such in, each
jurisdiction in which they own or lease substantial properties, have an
office, or in which substantial business is conducted and such
qualification is required except where the failure to so qualify or be in
good standing would not have a Material Adverse Effect; and no proceeding
of which the Company has knowledge has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification except as would not
have a Material Adverse Effect.
(d) Except as disclosed in the Registration Statement, the
Company owns directly or indirectly 100 percent of the issued and
outstanding capital stock of each of its Significant Subsidiaries, free and
clear of any claims, liens, encumbrances or security interests and all of
such capital stock has been duly authorized and validly issued and is fully
paid and nonassessable.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus.
(f) The Shares have been duly authorized and when issued,
delivered and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and will conform to the description thereof
contained in the Prospectus.
(g) The making and performance by the Company of this
Agreement and the Pricing Agreement and the consummation of the
transactions contemplated in the Prospectus, including the transactions
described in the section of the Prospectus entitled "Ownership
Recapitalization" (the "OWNERSHIP RECAPITALIZATION TRANSACTIONS"), have
been duly authorized by all necessary corporate action and will not (i)
violate any provision of the Company's charter or bylaws, (ii) result in
the breach, or be in contravention, of any provision of any agreement,
franchise, license, indenture, mortgage, deed of trust, or other instrument
to which the Company or any Significant Subsidiary is a party or by which
the Company, any Significant Subsidiary or the property of any of them may
be bound or affected, except to the extent such breach would not have a
Material Adverse Effect, (iii) violate any order, rule or regulation
applicable to the Company or any Significant Subsidiary of any
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court or regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or any subsidiary or any of their
respective properties, except to the extent such violation would not have a
Material Adverse Effect, or (iv) violate any order of any court or
governmental agency or authority entered in any proceeding to which the
Company or any Significant Subsidiary was or is now a party or by which it
is bound, except to the extent such violation would not have a Material
Adverse Effect. No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body is
required for the consummation of the Ownership Recapitalization
Transactions or the execution and delivery of this Agreement or the Pricing
Agreement or the consummation of the transactions contemplated herein or
therein, except such as have been obtained under the 1933 Act in connection
with the purchase and distribution of such Shares by the Underwriters and
such as may be required under applicable blue sky laws in connection with
the purchase and distribution of such Shares by the Underwriters and the
Ownership Recapitalization Transactions and the clearance of the offering
of the Shares with the National Association of Securities Dealers, Inc.
("NASD"). This Agreement has been duly executed and delivered by the
Company.
(h) The accountants who have expressed their opinions with
respect to certain of the financial statements and schedules included in
the Registration Statement are independent accountants as required by the
1933 Act.
(i) The consolidated financial statements and schedules of the
Company included in the Registration Statement present fairly, in all
material respects, the consolidated financial position of the Company as of
the respective dates of such financial statements, and the consolidated
results of operations and cash flows of the Company for the respective
periods covered thereby, all in conformity with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed in the Prospectus; and the supporting schedules
included in the Registration Statement present fairly, in all material
respects, the information required to be stated therein. The financial
information set forth in the Prospectus under "Selected Consolidated
Financial Data" presents fairly, in all material respects, on the basis
stated in the Prospectus, the information set forth therein.
The pro forma financial statements and other pro forma
information included in the Prospectus present fairly, in all material
respects, the information shown therein, have been prepared in accordance
with generally accepted accounting principles and the Commission's rules
and guidelines with respect to pro forma financial statements and other pro
forma information, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate under the circumstances.
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(j) Neither the Company nor any Significant Subsidiary is in
violation of its charter or in default under any consent decree, or in
default with respect to any material provision of any lease, loan
agreement, franchise, license, permit or other contract obligation to which
it is a party except for defaults which neither singly nor in the aggregate
would have a Material Adverse Effect; and there does not exist any state of
facts which constitutes an event of default as defined in such documents or
which, with notice or lapse of time or both, would constitute such an event
of default, in each case, except for defaults which neither singly nor in
the aggregate would have a Material Adverse Effect.
(k) There are no material legal or governmental proceedings
pending or, to the Company's knowledge, threatened to which the Company or
any Significant Subsidiary is or may be a party or of which material
property owned or leased by the Company or any Significant Subsidiary is or
may be the subject, or related to environmental or discrimination matters
which are not disclosed in the Prospectus, or which question the validity
of this Agreement or the Pricing Agreement or any action taken or to be
taken pursuant hereto or thereto.
(l) No labor dispute with the employees of the Company exists,
or, to the knowledge of the Company, is imminent that might have a Material
Adverse Effect.
(m) The Company and each of its Significant Subsidiaries have
good and marketable title to all the properties and assets reflected as
owned in the financial statements hereinabove described (or elsewhere in
the Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those, if any, reflected in such financial
statements (or elsewhere in the Prospectus) or which are not material to
the Company and its subsidiaries taken as a whole. The Company and each of
its Significant Subsidiaries hold their respective leased properties under
valid and binding leases, except as would not have a Material Adverse
Effect.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company and its Significant
Subsidiaries have not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material adverse
change in their condition (financial or otherwise) or results of operations
nor any material change in their capital stock, short-term debt or
long-term debt.
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(p) There is no material document of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or filed
as required.
(q) The Company together with its Significant Subsidiaries
owns and possesses all right, title and interest in and to, or has duly
licensed from third parties, all patents, patent rights, trade secrets,
inventions, know-how, trademarks, trade names, copyrights, service marks
and other proprietary rights ("TRADE RIGHTS") material to the business of
the Company and each of its subsidiaries taken as a whole. Neither the
Company nor any of its Significant Subsidiaries has received any notice of
infringement, misappropriation or conflict from any third party as to such
material Trade Rights which has not been resolved or disposed of and
neither the Company nor any of its Significant Subsidiaries has infringed,
misappropriated or otherwise conflicted with material Trade Rights of any
third parties, except which infringement, misappropriation or conflict
would not reasonably be expected to have a Material Adverse Effect.
(r) The conduct of the business of the Company and each of its
Significant Subsidiaries is in compliance in all respects with applicable
federal, state, local and foreign laws and regulations, except where the
failure to be in compliance would not have a Material Adverse Effect.
(s) The Company maintains systems of internal accounting
controls sufficient to provide reasonable assurances 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(c) and 15d-14(c) of the Exchange Act and rules and regulations
promulgated thereunder) that are 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 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, and
the Company is otherwise in compliance in all material respects with all
applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of the 2002 and
the rules and regulations issued thereunder by the Commission.
(t) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times exempt from the registration
requirements of the 1933 Act and were duly registered
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with or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
(u) The Company is insured by recognized, financially sound
and reputable institutions against such losses and risks and in such
amounts as it believes are prudent and customary for companies engaged in
similar businesses in similar industries, and, except as described in the
Prospectus, the Company has no reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(v) No relationship, direct or indirect, exists among the
Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, that is required
to by the 1933 Act to be described in the Prospectus and that is not so
described.
(w) Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data
included in the Prospectus is not based on or derived from sources that are
reliable and accurate in all material respects.
(x) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the knowledge
of the Company might be, asserted against the Company or any of its
properties or assets that would or could reasonably be expected to have a
Material Adverse Effect.
(y) The Company has filed a registration statement pursuant to
Section 12(g) of the Exchange Act to register the Common Stock thereunder,
has filed an application to list the Shares on the Nasdaq National Market,
and has received notification that the listing has been approved, subject
to notice of issuance or sale of the Shares, as the case may be.
(z) A registration statement relating to the Common Stock has
been declared effective by the Commission pursuant to the Exchange Act and
the Common Stock is duly registered thereunder. The Shares have been listed
on the Nasdaq National Market, subject to notice of issuance or sale of the
Shares, as the case may be.
(aa) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended
("INVESTMENT COMPANY ACT").
(bb) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, AN ACT RELATING TO DISCLOSURE OF DOING
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BUSINESS WITH CUBA, and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement becomes
or has become effective with the Commission or with the Florida Department
of Banking and Finance (the "DEPARTMENT"), whichever date is later, or if
the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the Department
notice of such business or change, as appropriate, in a form acceptable to
the Department.
(cc) The Company has not offered, or caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Company or its affiliates to offer, any Directed Shares pursuant to the
Directed Share Program with the specific intent to unlawfully influence (i)
a customer or supplier of the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its services.
(dd) The Registration Statement, the Prospectus and any
preliminary prospectus comply in all material respects, and any amendments
or supplements thereto will comply in all material respects, with any
applicable laws or regulations of any foreign jurisdiction in which the
Prospectus or any preliminary prospectus, as amended or supplemented, if
applicable, is distributed in connection with the Directed Share Program.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING
STOCKHOLDER AND ▇▇▇▇ ▇. ▇▇▇▇▇▇.
(a) The Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇, as the
principal beneficial owner of the Selling Stockholder, represent and
warrant to, and agrees with, the Company and the Underwriters that:
(i) The Selling Stockholder has, and on the Second
Closing Date, as hereinafter defined, will have, valid marketable
title to the Shares proposed to be sold by the Selling
Stockholder hereunder on such date and full right, power and
authority to enter into this Agreement and the Pricing Agreement
and to sell, assign, transfer and deliver such Shares hereunder,
free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights; and
upon delivery of and payment for such Shares hereunder, the
Underwriters will acquire valid marketable title thereto, free
and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights.
(ii) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or which
might be reasonably expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale
or resale of the Shares.
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(iii) Each preliminary prospectus, insofar as it has
related to the Selling Stockholder and, to the knowledge of the
Selling Stockholder in all other respects, as of its date, has
conformed in all material respects with the requirements of the
1933 Act and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading; and the
Registration Statement at the time of effectiveness, and at all
times subsequent thereto, up to the Second Closing Date, as
hereinafter defined, (1) such parts of the Registration Statement
and the Prospectus and any amendments or supplements thereto
insofar as they relate to the Selling Stockholder, and the
Registration Statement and the Prospectus and any amendments or
supplements thereto, to the knowledge of the Selling Stockholder
in all other respects, contained or will contain all statements
that are required to be stated therein in accordance with the
1933 Act and in all material respects conformed or will in all
material respects conform to the requirements of the 1933 Act,
and (2) neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, as it relates to the
Selling Stockholder, and, to the knowledge of the Selling
Stockholder in all other respects, included or will include any
untrue statement of a material fact or omitted or will omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that neither clause (1) nor (2) shall have any effect if
information has been given by the Selling Stockholder to the
Company and the Representatives in writing which would eliminate
or remedy any such untrue statement or omission.
(iv) The making and performance by the Selling
Stockholder of this Agreement and the Pricing Agreement and the
consummation of the transactions contemplated in the Prospectus,
including the Ownership Recapitalization Transactions, have been
duly authorized by all necessary corporate action and will not
(1) violate any provision of the Selling Stockholder's charter or
bylaws, (2) result in the breach, or be in contravention, of any
provision of any agreement, franchise, license, indenture,
mortgage, deed of trust, or other instrument to which the Selling
Stockholder or any of its affiliates is a party or by which the
Selling Stockholder or any of its affiliates or the property of
any of them may be bound or affected, except to the extent such
breach would not have a Material Adverse Effect, (3) violate any
order, rule or regulation applicable to the Selling Stockholder
or any of its affiliates of any court or regulatory body,
administrative agency or other governmental body having
jurisdiction over the Selling Stockholder or any of its
affiliates or any of their respective properties, except to the
extent such violation would not have a Material Adverse Effect,
or (4) violate any order of any court or governmental agency or
authority entered in any proceeding to which the Selling
Stockholder or any of its affiliates was or is now a party or by
which it is bound. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or
other governmental body is required for the consummation of the
Ownership Recapitalization Transactions or the execution and
delivery of this Agreement or the Pricing Agreement or the
consummation of the transactions
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contemplated herein or therein, except such as have been obtained
under the 1933 Act in connection with the purchase and
distribution of such Shares by the Underwriters and such as may
be required under applicable blue sky laws in connection with the
purchase and distribution of such Shares by the Underwriters and
the Ownership Recapitalization Transactions and the clearance of
the offering of the Shares with the NASD. This Agreement has been
duly executed and delivered by the Selling Stockholder.
(b) The Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇, to the best of
his knowledge, represent and warrant to, and agree with, the Underwriters to the
same effect as the representations and warranties of the Company set forth in
Section 2 of this Agreement.
In order to document the Underwriter's compliance with the reporting and
withholding provisions of the Internal Revenue Code of 1986, as amended, with
respect to the transactions herein contemplated, the Selling Stockholder agrees
to deliver to you prior to or on the Second Closing Date, as hereinafter
defined, a properly completed and executed United States Treasury Department
Form W-8 or W-9 (or other applicable form of statement specified by Treasury
Department regulations in lieu thereof).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. The
Representatives, on behalf of the several Underwriters, represent and warrant to
the Company and the Selling Stockholder that the information set forth (a) on
the cover page of the Prospectus with respect to price, underwriting discount
and terms of the offering and (b) under "Underwriting" in the Prospectus was
furnished to the Company by and on behalf of the Underwriters for use in
connection with the preparation of the Registration Statement and is correct and
complete in all material respects.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters named in Schedule A hereto, and the Underwriters agree, severally
and not jointly, to purchase the Firm Shares from the Company at the price per
share set forth in the Pricing Agreement. The obligation of each Underwriter to
the Company shall be to purchase from the Company that number of full shares
equal to the number of Shares set forth opposite the name of such Underwriter in
Schedule A hereto. The initial public offering price and the purchase price
shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted under
Rule 15c6-1 under the Exchange Act, (or the third business day if required under
Rule 15c6-1 under the Exchange Act or unless postponed in accordance with the
provisions of Section 13 hereof) following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or
the third business day if required under Rule 15c6-1 under the Exchange Act)
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company, the Company
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will deliver to you at the offices of counsel for the Underwriters or through
the facilities of The Depository Trust Company for the accounts of the several
Underwriters, certificates representing the Firm Shares to be sold by it against
payment of the purchase price therefor by delivery of federal or other
immediately available funds, by wire transfer or otherwise, to the Company. Such
time of delivery and payment is herein referred to as the "FIRST CLOSING DATE."
The certificates for the Firm Shares so to be delivered will be in such
denominations and registered in such names as you request by notice to the
Company prior to 10:00 A.M., Chicago Time, on the second full business day
preceding the First Closing Date, and will be made available at the Company's
expense for checking and packaging by the Representatives at 10:00 A.M., Chicago
Time, on the business day preceding the First Closing Date. Payment for the Firm
Shares so to be delivered shall be made at the time and in the manner described
above at the offices of counsel for the Underwriters.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company and the Selling Stockholder hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
615,000 Option Shares, at the same purchase price per share to be paid for
the Firm Shares, for use solely in covering any overallotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more than once) within 30 days
after the date of the initial public offering upon notice by you to the Company
and the Agents setting forth the aggregate number of Option Shares as to which
the Underwriters are exercising the option, the names and denominations in which
the certificates for such shares are to be registered and the time and place at
which such certificates will be delivered. Such time of delivery (which may not
be earlier than the First Closing Date), being herein referred to as the "SECOND
CLOSING DATE," shall be determined by you, but if at any time other than the
First Closing Date, shall not be earlier than three nor later than 10 full
business days after delivery of such notice of exercise. The maximum number of
Option Shares to be purchased from the Company and the Selling Stockholder are
set forth in Schedule C hereto. If the Underwriters elect to exercise the option
granted hereunder, the first 267,000 Option Shares purchased pursuant to
such option shall be purchased from the Selling Stockholder, and any additional
Option Shares purchased pursuant to such option shall be purchased from the
Company. The number of Option Shares to be purchased by each Underwriter shall
be determined by multiplying the number of Option Shares to be sold by a
fraction, the numerator of which is the number of Firm Shares to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). Certificates for the Option Shares will be made available
at the Company's expense for checking and packaging at 10:00 A.M., Chicago Time,
on the first full business day preceding the Second Closing Date. The manner of
payment for and delivery of the Option Shares shall be the same as for the Firm
Shares as specified in the preceding paragraph.
You have advised the Company and the Selling Stockholder that each
Underwriter has authorized you to accept delivery of its Shares, to make payment
and to acknowledge receipt therefor. You, individually and not as the
Representatives of the Underwriters, may make payment for any Shares to be
purchased by any Underwriter whose funds shall not have been received by you by
the First Closing Date or the Second Closing
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Date, as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any obligation hereunder.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and
agrees that:
(a) The Company will advise you and the Selling Stockholder
promptly of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, or of any notification of the suspension of
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceedings for that purpose, and will also advise
you and the Selling Stockholder promptly of any request of the Commission
for amendment or supplement of the Registration Statement, of any
preliminary prospectus or of the Prospectus, or for additional information.
(b) The Company will give you and the Selling Stockholder
notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any Rule
462(b) Registration Statement or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company proposes for
use by the Underwriters in connection with the offering of the Shares which
differs from the prospectus on file at the Commission at the time the
Registration Statement became or becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) and any
term sheet as contemplated by Rule 434) and will furnish you and the
Selling Stockholder with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or use any such
prospectus to which you or counsel for the Underwriters shall reasonably
object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act,
the Company will prepare a term sheet that complies with the requirements
of Rule 434. If the Company elects not to rely on Rule 434, the Company
will provide the Underwriters with copies of the form of prospectus, in
such numbers as the Underwriters may reasonably request, and file with the
Commission such prospectus in accordance with Rule 424(b) of the 1933 Act
by the close of business in New York City on the second business day
immediately succeeding the date of the Pricing Agreement. If the Company
elects to rely on Rule 434, the Company will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such numbers as the
Underwriters may reasonably request, by the close of business in New York
on the business day immediately succeeding the date of the Pricing
Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a result of
which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
-13-
the Prospectus, including any amendments or supplements thereto and
including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) to comply with
the 1933 Act, the Company promptly will advise you thereof and will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance; and, in case any Underwriter is required to deliver
a prospectus nine months or more after the effective date of the
Registration Statement, the Company upon request, but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section
10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will,
prior to the earlier of the Second Closing Date or termination or
expiration of the related option, incur any liability or obligation, direct
or contingent, or enter into any material transaction, other than in the
ordinary course of business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will
acquire any capital stock of the Company prior to the earlier of the Second
Closing Date or termination or expiration of the related option nor will
the Company declare or pay any dividend or make any other distribution upon
the Common Stock payable to stockholders of record on a date prior to the
earlier of the Second Closing Date or termination or expiration of the
related option, except in either case as contemplated by the Prospectus.
(g) The Company agrees not to offer, sell, contract to sell or
otherwise dispose of any Common Stock or securities convertible into Common
Stock for a period of 180 days after this Agreement becomes effective
without the prior written consent of the Representatives except (i) in
connection with the offering of the Common Stock as described herein or
(ii) options to purchase the Common Stock, in the ordinary course of
business, to employees and/or directors pursuant to plans currently in
existence, PROVIDED, HOWEVER, that if (1) during the last 17 days of the
180-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs or (2)
prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, then the restrictions
imposed by this agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company has obtained
similar agreements from each of its officers and directors.
(h) An officer of the Company will provide the Representatives
with a certificate stating that (i) there are no holders of securities of
the Company having rights to registration thereof or
-14-
preemptive rights to purchase Common Stock except as disclosed in the
Prospectus, (ii) holders of registration rights, if any, have waived such
rights with respect to the offering being made by the Prospectus and (iii)
the Ownership Recapitalization Transactions have been consummated as
described in the Prospectus in all material respects.
(i) Not later than the Availability Date (as defined below),
the Company will make generally available to its security holders an
earnings statement (which need not be audited) covering a period of at
least 12 months beginning after the effective date of the Registration
Statement, which will satisfy the provisions of the last paragraph of
Section 11(a) of the 1933 Act. For the purposes of the preceding sentence,
the "AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the effective
date of the Registration Statement, 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.
(j) During such period as a prospectus is required by law to
be delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus and all
amendments and supplements to any such documents in each case as soon as
available and in such quantities as you may reasonably request, for the
purposes contemplated by the 1933 Act.
(k) The Company will cooperate with the Underwriters in
qualifying or registering the Shares for sale under the blue sky laws of
such jurisdictions as you designate, and will continue such qualifications
in effect so long as reasonably required for the distribution of the
Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not currently qualified or where it would be
subject to taxation as a foreign corporation.
(l) During the period of two years from the effective date of
the Registration Statement, the Company will furnish you and each of the
other Underwriters with a copy (i) as soon as practicable after the filing
thereof, of each report filed by the Company with the Commission, any
securities exchange or the NASD and (ii) as soon as available, of each
report of the Company mailed to stockholders.
(m) The Company will use the net proceeds received by it from
the sale of the Shares being sold by it in the manner specified in the
Prospectus.
(n) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in reliance
upon Rule 430A and/or Rule 434, then immediately following the execution of
the Pricing Agreement, the Company will prepare, and file or transmit for
filing with
-15-
the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule
434, copies of an amended Prospectus, or, if required by such Rule 430A
and/or Rule 434, a post-effective amendment to the Registration Statement
(including an amended Prospectus), containing all information so omitted.
If required, the Company will prepare and file, or transmit for filing, a
Rule 462(b) Registration Statement not later than the date of the execution
of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed,
the Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule 111.
(o) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National Market
and will file with the Commission in a timely manner all reports required
by Rule 463.
(p) The Company will comply with all applicable securities and
other laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share Program.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters) incurred in
connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all fees and
expenses of legal counsel for the Company and of the Company's independent
accountants, all costs and expenses incurred in connection with the preparation,
printing, filing and distribution of the Registration Statement, each
preliminary prospectus and the Prospectus (including all exhibits and financial
statements) and all amendments and supplements provided for herein, this
Agreement, the Pricing Agreement and the Blue Sky Memorandum, (ii) reasonable
costs, fees and expenses (including legal fees and disbursements of counsel for
the Underwriters), not to exceed $5,000, incurred by the Underwriters in
connection with qualifying or registering all or any part of the Shares for
offer and sale under blue sky laws, including the preparation of a blue sky
memorandum relating to the Shares and clearance of such offering with the NASD;
and (iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters.
SECTION 8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company, the Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ herein set forth as of
the date hereof and as of the First Closing Date or the Second Closing Date, as
the case may be, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company, the
Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ of their respective obligations
hereunder, and to the following additional conditions:
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(a) The Registration Statement shall have become effective
either prior to the execution of this Agreement or not later than 1:00
P.M., Chicago Time, on the first full business day after the date of this
Agreement, or such later time as shall have been consented to by you but in
no event later than 1:00 P.M., Chicago Time, on the third full business day
following the date hereof; and prior to the First Closing Date or the
Second Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending
or, to the knowledge of the Company, the Selling Stockholder or you, shall
be contemplated by the Commission. If the Company has elected to rely upon
Rule 430A and/or Rule 434, the information concerning the initial public
offering price of the Shares and price-related information shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within the
prescribed period and the Company will provide evidence satisfactory to the
Representatives of such timely filing (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rules 430A and 424(b)). If a Rule
462(b) Registration Statement is required, such Registration Statement
shall have been transmitted to the Commission for filing and become
effective within the prescribed time period and, prior to the First Closing
Date, the Company shall have provided evidence of such filing and
effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the
blue sky laws of such states as shall have been specified by the
Representatives.
(c) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and the Pricing Agreement, and all
corporate proceedings and other legal matters incident thereto, and the
form of the Registration Statement and the Prospectus (except financial
statements) shall have been approved by counsel for the Underwriters
exercising reasonable judgment.
(d) You shall not have advised the Company (i) that the
Registration Statement or any amendment or supplement thereto, contains an
untrue statement of fact, which, in the opinion of counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or necessary
to make the statements therein not misleading, or (ii) that the Prospectus
or any amendment or supplement thereto, contains an untrue statement of
fact, which, in the opinion of counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly
-17-
the business or properties of the Company or its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, which, in
the judgment of the Representatives, makes it impractical or inadvisable to
proceed with the public offering or purchase of the Shares as contemplated
hereby.
(f) There shall have been furnished to you, as Representatives
of the Underwriters, on the First Closing Date or the Second Closing Date,
as the case may be, except as otherwise expressly provided below:
(i) An opinion of White & Case, counsel for
the Company and the Selling Stockholder addressed to the
Underwriters and dated the First Closing Date or the Second
Closing Date, as the case may be, in the form attached hereto as
Annex A.
(ii) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice
President--General Counsel and Secretary for the Company
addressed to the Underwriters and dated the First Closing Date or
the Second Closing Date, as the case may be, in the form attached
hereto as Annex B.
(iii) An opinion of [_____________], counsel for
the Selling Stockholder addressed to the Underwriters and dated
the Second Closing Date, in the form attached hereto as Annex C.
In rendering each such opinion in clauses (i), (ii) and
(iii) above, such counsel may state that they are relying upon
the certificate of [▇▇▇▇▇ Fargo Shareowner Services] the transfer
agent for the Common Stock, as to the number of shares of Common
Stock at any time or times outstanding, and that insofar as their
opinion relates to the accuracy and completeness of the
Prospectus and Registration Statement, it is based upon a general
review with the Company's representatives and independent
accountants of the information contained therein, without
independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon
the opinions of other competent counsel and, as to factual
matters, on certificates of the Selling Stockholders and of
officers of the Company and of state officials, in which case
their opinion is to state that they are so doing and copies of
said opinions or certificates are to be attached to the opinion
unless said opinions or certificates (or, in the case of
certificates, the information therein) have been furnished to the
Representatives in other form.
(iii) Such opinion or opinions of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, LLP, counsel for the Underwriters, dated the First
Closing Date or the Second Closing Date, as the case may be, with
respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement and the Prospectus and other
related matters as you may reasonably require, and the Company
shall have furnished to such counsel such documents and shall
-18-
have exhibited to them such papers and records as they request
for the purpose of enabling them to pass upon such matters.
(iv) A certificate of the chief executive
officer and the principal financial officer of the Company, dated
the First Closing Date or the Second Closing Date, as the case
may be, to the effect that:
(1) the representations and warranties of the
Company set forth in Section 2 of this Agreement are true
and correct as of the date of this Agreement and as of the
First Closing Date or the Second Closing Date, as the case
may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing
Date;
(2) the Ownership Recapitalization
Transactions have been consummated as described in the
Prospectus in all material respects; and
(3) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order
suspending the effectiveness of the Registration Statement
has been issued; and to the best knowledge of the
respective signers, no proceedings for that purpose have
been instituted or are pending or contemplated under the
1933 Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and
warranty of the Company as to the facts required in the
immediately foregoing clauses (1) and (2) of this subparagraph to
be set forth in said certificate.
(v) A certificate executed by the Selling
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ dated the Second Closing Date to
the effect that the representations and warranties of the Selling
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ set forth in Section 3 of this
Agreement are true and correct as of such date and the Selling
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ have complied with all the
agreements and satisfied all the conditions on the part of the
Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ to be performed or
satisfied at or prior to such date, including, without
limitation, the consummation of the Ownership Recapitalization
Transactions.
(vi) At the time the Pricing Agreement is
executed and also on the First Closing Date or the Second Closing
Date, as the case may be, there shall be delivered to you a
letter addressed to you, as Representatives of the Underwriters,
from Ernst & Young, independent accountants, the first one to be
dated the date of the Pricing Agreement, the
-19-
second one to be dated the First Closing Date and the third one
(in the event of a second closing) to be dated the Second Closing
Date, to the effect set forth in Schedule D. There shall not have
been any change or decrease specified in the letters referred to
in this subparagraph which makes it impractical or inadvisable in
the judgment of the Representatives to proceed with the public
offering or purchase of the Shares as contemplated hereby.
(vii) On or prior to the First Closing Date,
there shall be delivered to you lockup letters from the
stockholders, officers and directors of the Company, each of
which is listed on Schedule E.
(viii) On or prior to the First Closing Date,
there shall be delivered to you a lockup letter from the Selling
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ in the form attached hereto as
Annex D.
(ix) Such further certificates and documents as
you may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for the Underwriters, which approval shall not
be unreasonably withheld. The Company shall furnish you with such manually
signed or conformed copies of such opinions, certificates, letters and documents
as you request.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at the First Closing Date is not so satisfied, this Agreement at
your election will terminate upon notification to the Company without liability
on the part of any Underwriter or the Company, except for the expenses to be
paid or reimbursed by the Company pursuant to Sections 7 and 9 hereof and except
to the extent provided in Section 11 hereof.
SECTION 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale to
the Underwriters of the Shares on the First Closing Date is not consummated
because any condition of the Underwriters' obligations hereunder is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
unless such failure to satisfy such condition or to comply with any provision
hereof is due to the default or omission of any Underwriter, the Company agrees
to reimburse you and the other Underwriters upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by you and them in connection with the proposed
purchase and the sale of the Shares. Any such termination shall be without
liability of any party to any other party except that the provisions of this
Section, Section 7 and Section 11 shall at all times be effective and shall
apply.
SECTION 10. EFFECTIVENESS OF REGISTRATION STATEMENT. You, the Company
and the Selling Stockholder will use your, its and their reasonable best efforts
to cause the Registration Statement to become effective, if it has not yet
become effective, and to prevent the issuance of any stop order suspending the
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effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. INDEMNIFICATION. (a) The Company, the Selling Stockholder
and ▇▇▇▇ ▇. ▇▇▇▇▇▇, jointly and severally, agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the 1933 Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the 1933 Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise
(including in settlement of any litigation if such settlement is effected with
the written consent of the Company, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A and/or
Rule 434, if applicable, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company, the Selling
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ will not be liable in any such case to the extent
that (i) any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company or the Selling
Stockholder by or on behalf of any Underwriter through the Representatives,
specifically for use therein; or (ii) if such statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
and (1) any such loss, claim, damage or liability suffered or incurred by any
Underwriter (or any person who controls any Underwriter) resulted from an
action, claim or suit by any person who purchased Shares which are the subject
thereof from such Underwriter in the offering and (2) such Underwriter failed to
deliver or provide a copy of the Prospectus to such person at or prior to the
confirmation of the sale of such Shares in any case where such delivery is
required by the 1933 Act. In addition to its other obligations under this
Section 11(a), the Company, the Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ agree
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 11(a), they will reimburse the Underwriters on a monthly basis upon
receipt of notices setting forth in reasonable detail all reasonable legal and
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Company's, the Selling Stockholder's and ▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ obligation to
reimburse the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction; PROVIDED, HOWEVER, that if it shall be determined by a court of
competent jurisdiction that the matter for which such expenses were incurred and
paid by the Company, the Selling Stockholder or ▇▇▇▇ ▇. ▇▇▇▇▇▇ is not a
-21-
matter to which the Underwriters are entitled to indemnification by the Company,
the Selling Stockholder or ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Underwriters shall reimburse the
Company, the Selling Stockholder or ▇▇▇▇ ▇. ▇▇▇▇▇▇ for any expenses previously
paid or reimbursed to the Underwriters. This indemnity agreement will be in
addition to any liability which the Company, the Selling Stockholder and ▇▇▇▇ ▇.
▇▇▇▇▇▇ may otherwise have.
Without limiting the full extent of the Company's agreement to indemnify
each Underwriter, as herein provided, the Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇
shall be liable under the indemnity agreements contained in paragraph (a) of
this Section only for an amount not exceeding the proceeds received by the
Selling Stockholder from the sale of Shares hereunder.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, the Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and each person, if any, who
controls the Company within the meaning of the 1933 Act or the Exchange Act,
against any losses, claims, damages or liabilities to which the Company, the
Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ or any such director, officer or controlling
person may become subject under the 1933 Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with Section 4 of this
Agreement or any other written information furnished to the Company by such
Underwriter through the Representatives specifically for use in the preparation
thereof; and will reimburse any legal or other expenses reasonably incurred by
the Company, the Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. In addition to their other
obligations under this Section 11(b), the Underwriters agree that, as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 11(b), they will
reimburse the Company, the Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ on a monthly
basis for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Underwriters' obligation to reimburse
the Company, the Selling Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction; PROVIDED, HOWEVER, that if it shall be
determined by a court of competent jurisdiction that the matter for which such
expenses were incurred and paid by the Underwriters is not a matter to which the
Company, the Selling Stockholder, or ▇▇▇▇ ▇. ▇▇▇▇▇▇ are entitled to
indemnification by the Underwriters, the Company, the Selling
-22-
Stockholder and ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall reimburse the Underwriters for any expenses
previously paid or reimbursed to the Company, the Selling Stockholder or ▇▇▇▇ ▇.
▇▇▇▇▇▇. This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 11
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on advice of counsel, that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, or the indemnified and indemnifying parties
may have conflicting interests which would make it inappropriate for the same
counsel to represent both of them, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defense and otherwise
to participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defense in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(d) If the indemnification provided for in this Section 11 is unavailable
to an indemnified party under paragraphs (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the
-23-
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholder,
▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Underwriters from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
respective relative benefits received by the Company, the Selling Stockholder,
▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Underwriters shall be deemed to be in the same
proportion, in the case of the Company, the Selling Stockholder and ▇▇▇▇ ▇.
▇▇▇▇▇▇, as the total price paid to the Company and the Selling Stockholder for
the Shares by the Underwriters (net of underwriting discount but before
deducting expenses), and in the case of the Underwriters, as the underwriting
discount received by them bears to the total of such amounts paid to the Company
and the Selling Stockholder and received by the Underwriters as underwriting
discount in each case as contemplated by the Prospectus. The relative fault of
the Company, the Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Underwriters shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company, the Selling Stockholder, ▇▇▇▇ ▇.
▇▇▇▇▇▇ or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company, the Selling Stockholder, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the provisions of
this Section, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and the Selling Stockholder shall not be required to contribute any
amount in excess of the proceeds received by the Selling Stockholder from the
sale of Shares by the Selling Stockholder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section are several in proportion to their respective underwriting commitments
and not joint.
(e) The provisions of this Section 11 shall survive any termination of
this Agreement.
SECTION 12. DEFAULT OF UNDERWRITERS. It shall be a condition to the
agreement and obligation of the Company and the Selling Stockholder to sell and
deliver the Shares hereunder, and of each Underwriter to
-24-
purchase the Shares hereunder, that, except as hereinafter in this paragraph
provided, each of the Underwriters shall purchase and pay for all Shares agreed
to be purchased by such Underwriter hereunder upon tender to the Representatives
of all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on the
First Closing Date and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10
percent of the total number of Shares which the Underwriters are obligated to
purchase on the First Closing Date, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such
date the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such
defaulting Underwriters agreed but failed to purchase on such date. If any
Underwriter or Underwriters so default and the aggregate number of Shares with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to the Representatives and the Company
for the purchase of such Shares by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any nondefaulting Underwriter or the Company, except for the expenses to be
paid by the Company pursuant to Section 7 hereof and except to the extent
provided in Section 11 hereof; PROVIDED that the Company shall not be required
to pay the expenses of any defaulting Underwriter.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
SECTION 13. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
legal holiday (and in that event this Agreement shall become effective at such
hour on the business day next succeeding such Saturday, Sunday or legal
holiday); but this Agreement shall nevertheless become effective at such earlier
time after the Pricing Agreement is executed and delivered as you may determine
on and by notice to the Company and the Selling Stockholder or by release of any
Shares for sale to the public. For the purposes of this Section, the Shares
shall be deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
written communications (i) advising Underwriters that the Shares are released
for public offering, or (ii) offering the Shares for sale to securities dealers,
whichever may occur first.
SECTION 14. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
-25-
(a) This Agreement may be terminated by the Company by notice
to you and the Selling Stockholder or by you by notice to the Company and
the Selling Stockholder at any time prior to the time this Agreement shall
become effective as to all its provisions, and any such termination shall
be without liability on the part of the Company or the Selling Stockholder
to any Underwriter (except for the expenses to be paid or reimbursed
pursuant to Section 7 hereof and except to the extent provided in Section
11 hereof) or of any Underwriter to the Company or the Selling Stockholder.
(b) This Agreement may also be terminated by you prior to the
First Closing Date, and the option referred to in Section 5, if exercised,
may be cancelled at any time prior to the Second Closing Date, if (i)
trading in securities on the New York Stock Exchange shall have been
suspended or minimum prices shall have been established on such exchange,
or (ii) a banking moratorium shall have been declared by Illinois, New
York, or United States authorities, or (iii) there shall have been any
change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of the
Shares on the terms set forth in the Prospectus or materially and adversely
affects the market for the Shares, or (iv) there shall have been an
outbreak of major armed hostilities between the United States and any
foreign power which in the opinion of the Representatives makes it
impractical or inadvisable to offer or sell the Shares. Any termination
pursuant to this paragraph (b) shall be without liability on the part of
any Underwriter to the Company or the Selling Stockholder or on the part of
the Company to any Underwriter or the Selling Stockholder (except for
expenses to be paid or reimbursed pursuant to Section 7 hereof and except
to the extent provided in Section 11 hereof).
SECTION 15. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholder, of ▇▇▇▇
▇. ▇▇▇▇▇▇ and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of its or their
partners, principals, members, officers or directors or any controlling person,
or the Selling Stockholder, as the case may be, and will survive delivery of and
payment for the Shares sold hereunder.
SECTION 16. NOTICES. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, c/o ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ; if sent
to the Company will be mailed, delivered or telegraphed and confirmed to the
Company at its corporate headquarters, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Executive Vice
President and General Counsel, with a copy to White & Case, c/o ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, 1155 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇; and if sent to the
Selling Stockholder will be mailed, delivered or telegraphed and confirmed to
the Selling Stockholder at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to White & Case, c/o
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 1155 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
-26-
SECTION 17. SUCCESSORS. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 18. REPRESENTATION OF UNDERWRITERS. You will act as
Representatives for the several Underwriters in connection with this financing,
and any action under or in respect of this Agreement taken by you will be
binding upon all the Underwriters.
SECTION 19. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 20. APPLICABLE LAW. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
SECTION 21. INTERPRETATION OF CERTAIN TERMS. Any words used herein
used in the singular shall denote the plural as the context so requires and,
when used herein in the plural shall denote the singular as the context so
requires. Pronouns used herein, whether masculine, feminine, or neuter, shall be
interpreted as the context so requires. The word "INCLUDING" shall mean
"INCLUDING, WITHOUT LIMITATION," and thus indicate part of a larger whole; but
shall not be interpreted as indicated the stated limits or extremes. Any
reference to any federal, state, or local law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context requires
otherwise.
SECTION 22. COUNTERPARTS. This Agreement may be executed in one or
any number of counterparts, each of which, once so executed, shall be deemed to
be an original, and such counterparts, each of which, once so executed, shall be
deemed to be an original, and such counterparts together shall constitute and be
one and the same instrument binding on all the parties hereto. This Agreement
may be executed by facsimile signature and a facsimile signature shall
constitute and original signature for all purposes.
-27-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholder and the
several Underwriters including you, all in accordance with its terms.
Very truly yours,
STANDARD PARKING CORPORATION
By:
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
President & Chief Executive Officer
[SELLING STOCKHOLDER]
By:
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
[Title]
▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS L.L.C.
Acting as Representatives of the
several Underwriters named in
Schedule A.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
By
----------------------------------
By ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C.
By
----------------------------------
-28-
SCHEDULE A
Number of Firm
Shares to be
Purchased
---------
UNDERWRITER
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C...............................................
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C. ...............................................
____________________________________.........................................
____________________________________.........................................
____________________________________.........................................
TOTAL............................
=======
SCHEDULE B
[Significant Subsidiaries]
SCHEDULE C
Maximum Number of Maximum Number
Option Shares to be of Option Shares to
Purchased from the be Purchased from
Selling Stockholder* the Company
-------------------- -----------
UNDERWRITER
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C..................................
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C. ..................................
____________________________________............................
____________________________________............................
____________________________________............................
TOTAL...............
========= =========
----------
* No Option Shares shall be purchased from the Company until the Underwriters
have purchased the maximum number of Option Shares to be purchased from the
Selling Stockholder.
SCHEDULE D
Comfort Letter of Ernst & Young
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act.
(2) In their opinion the consolidated financial statements and schedules
of the Company and its subsidiaries included in the Registration Statement and
the consolidated financial statements of the Company from which the information
presented under the caption "Selected Consolidated Financial Data" has been
derived which are stated therein to have been examined by them comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act.
(3) On the basis of specified procedures, including inquiries of certain
officers of the Company and its subsidiaries responsible for financial and
accounting matters as to transactions and events subsequent to ____________,
________, a reading of minutes of meetings of the stockholders and directors of
the Company and its subsidiaries since ____________, _______, a reading of the
latest available interim unaudited consolidated financial statements of the
Company and its subsidiaries (with an indication of the date thereof) and other
procedures as specified in such letter, nothing came to their attention which
caused them to believe that (i) the unaudited consolidated financial statements
of the Company and its subsidiaries included in the Registration Statement do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act or that such unaudited financial statements are not
fairly presented in accordance with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in the Registration Statement; (ii) the proforma financial
statements of the Company and its subsidiaries included in the Registration
Statement do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act or that such unaudited financial
statements are not fairly presented in accordance with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration Statement and; or
(iii) at a specified date not more than five days prior to the date thereof in
the case of the first letter and not more than two business days prior to the
date thereof in the case of the second and third letters, there was any change
in the capital stock or long-term debt or short-term debt (other than normal
payments) of the Company and its subsidiaries on a consolidated basis or any
decrease in consolidated net current assets or consolidated stockholders' equity
as compared with amounts shown on the latest unaudited balance sheet of the
Company included in the Registration Statement or for the period from the date
of such balance sheet to a date not more than five days prior to the date
thereof in the case of the first letter and not more than two business days
prior to the date thereof in the case of the second and third letters, there
were any decreases, as compared with the corresponding period of the prior year,
in consolidated net sales, consolidated income before income taxes or in the
total or per share amounts of consolidated net income except, in all instances,
for
changes or decreases which the Prospectus discloses have occurred or may occur
or which are set forth in such letter.
(4) They have carried out specified procedures, which have been agreed to
by the Representatives, with respect to certain information in the Prospectus
specified by the Representatives, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records of
the Company and its subsidiaries.
-33-
SCHEDULE E
[List of all stockholders, option-holders, officer and directors]
EXHIBIT A
[STANDARD PARKING LETTERHEAD]
____________ Shares Common Stock(1)
PRICING AGREEMENT
____________, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C.
As Representatives of the Several
Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the
Underwriting Agreement dated ____________, 2004
(the "
UNDERWRITING AGREEMENT") relating to the sale by the Company and the
purchase by the several Underwriters for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C. are acting as representatives (the
"REPRESENTATIVES"), of the above Shares. All terms herein shall have the
definitions contained in the
Underwriting Agreement except as otherwise defined
herein.
Pursuant to Section 5 of the
Underwriting Agreement, the Company agrees
with the Representatives as follows:
1. The initial public offering price per share for the Shares shall
be $__________.
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $__________, being an amount equal to the initial
public offering price set forth above less $__________ per share.
----------
(1) Plus an option to acquire up to _______ additional shares to cover
overallotments
Schedule A is amended as follows:
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters,
including you, all in accordance with its terms.
Very truly yours,
STANDARD PARKING CORPORATION
By:
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
President & Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS L.L.C.
Acting as Representatives of the
several Underwriters.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
By
---------------------------------
Principal
By ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners L.L.C.
By
---------------------------------
Principal
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