3,358,303 SHARES
GENESEE & WYOMING INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
May , 2004
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston LLC
As Representatives of the Several Underwriters;
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. The stockholder of Genesee & Wyoming Inc., a Delaware
corporation ("COMPANY"), listed on Schedule A hereto ("THE 1818 FUND") proposes
to sell to the Underwriters (as herein after defined) 3,358,303 shares (the
"FIRM SECURITIES") of the Company's Class A common stock, $.01 par value per
share ("SECURITIES"). For the sole purpose of covering over-allotments in
connection with the sale of the Firm Securities, Xxxxxxxx X. Xxxxxx III and Xxxx
X. Xxxxxxxx (the "MANAGEMENT SELLING STOCKHOLDERS" and, together with The 1818
Fund, collectively the "SELLING STOCKHOLDERS") and The 1818 Fund also, severally
and not jointly, propose to sell to the Underwriters up to the respective number
of shares of Securities set forth next to their name on Schedule B, for an
aggregate of up to 503,745 shares of Securities (the "OPTIONAL SECURITIES"). The
Firm Securities and the Optional Securities are herein collectively referred to
as the "OFFERED SECURITIES". The Company and the Selling Stockholders hereby
agree severally and not jointly with the several Underwriters named in Schedule
C hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Management
Selling Stockholders. (a) The Company and the Management Selling Stockholders
severally and not jointly represent and warrant to, and agree with, the several
Underwriters and The 1818 Fund that:
(i) A registration statement (No. 333-115088) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933, as
amended ("ACT") and is not proposed to be amended or (B) is proposed to
be amended by amendment or post-effective amendment. If such
registration statement (the "INITIAL REGISTRATION STATEMENT") has been
declared effective, either (A) an additional registration statement
(the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("RULE 462(B)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered for sale under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) or (d) ("RULE 462(C)/(D)") under the Act or, in
the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c)/(d), or (B) if the
Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If an additional registration
statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(B)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
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(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the execution
and delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Date of
the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform,
in all material respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to have such qualification
would not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
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described in the Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to have such qualification would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as disclosed in the
Prospectus, the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except for such liens, encumbrances and
defects that would not individually or in the aggregate have a Material
Adverse Effect.
(v) As of April 26, 2004, the authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
the caption "Description of Our Capital Stock - In General" and, after
giving effect to the offering of the Offered Securities, will be as set
forth under the caption "Description of Our Capital Stock - In
General". The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus in all material respects; and the
stockholders of the Company have no preemptive rights with respect to
the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act, except for such rights as are either not
applicable or have been waived.
(viii) The Offered Securities have been approved for listing
subject to notice of issuance on The New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
4
Company or any of their properties, (B) any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (C) the
charter or by-laws of the Company or any such subsidiary, except in the
case of a breach, violation or default under clauses (A) or (B) of any
such agreement or instrument that is not reasonably likely to result in
a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus or would not
reasonably be expected to have a Material Adverse Effect, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Prospectus,
the Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
them.
(xiii) Except as disclosed in the Prospectus, the Company and its
subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual
property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently employed by
them, and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus and other than
exceptions to any of the following that would not individually or in
the aggregate have a Material Adverse Effect, neither the Company nor
any of its subsidiaries is (A) in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), (B) owns or operates
any real property that, to the knowledge of the Company, is
contaminated with any substance that is subject to any environmental
laws, (C) to the knowledge of the Company, is liable for any off-site
5
disposal or contamination pursuant to any environmental laws, (D) is
subject to any claim relating to any environmental laws or (E) is aware
of any pending investigation which could reasonably be expected to lead
to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) (A) The historical financial statements of the Company
included or incorporated by reference in each Registration Statement
and the Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except
as otherwise disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; (B) the
historical financial statements of Australian Railroad Group Pty. Ltd.
("ARG") included or incorporated by reference in each Registration
Statement and the Prospectus present fairly the financial position of
ARG and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except
as otherwise disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and (C)
any non-GAAP financial measures included or incorporated by reference
in each Registration Statement or the Prospectus comply in all material
respects with the requirements of the Rules and Regulations.
(xix) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements incorporated by reference in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus and
dividends distributed in connection with the Company's Series A Senior
Redeemable Convertible Preferred Stock, $0.01 par value per share
("SERIES A PREFERRED STOCK"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(xx) Neither the Company nor any of its affiliates has taken, nor
will any of them take, directly or indirectly, any action designed to
cause or result in, or which constitutes or which might reasonably be
expected to constitute, the stabilization or manipulation of the price
of the shares of Securities to facilitate the sale or resale of the
Offered Securities.
(xxi) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in
6
accordance with management's general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. generally accepted
accounting principles and to maintain accountability for assets, (C)
access to assets is permitted only in accordance with management's
general or specific authorization, and (D) the recorded accounting for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxii) The Company is in material compliance with applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 ("XXXXXXXX-XXXXX ACT")
that are effective and is actively taking all steps that it reasonably
believes are necessary to ensure that it will be in material compliance
with other applicable provisions of the Xxxxxxxx-Xxxxx Act upon the
effectiveness of such provisions.
(xxiii) The Company has established and maintains "disclosure
controls and procedures" (as defined in Rules 13a-14(c) and 15d-14(c)
of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"));
the Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and
non-financial) 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 Regulations, and that all such information is accumulated and
communicated to the Company's management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications
of the Chief Executive Officer and Chief Financial Officer of the
Company required under the Exchange Act with respect to such reports.
(xxiv) Since the date of the filing of the Company's Annual Report
on Form 10-K for the year ended December 31, 2003, the Company's
auditors and the audit committee of the board of directors of the
Company (or persons fulfilling the equivalent function) have not been
advised of (A) any significant deficiencies in the design or operation
of internal controls which could adversely affect the Company's ability
to record, process, summarize and report financial data or any material
weaknesses in internal controls; or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company's internal controls.
(xxv) Both PricewaterhouseCoopers LLP, who have audited the
consolidated financial statements and information of the Company and
its subsidiaries for the years ended December 31, 2002 and 2003
incorporated by reference in the Registration Statements and the
Prospectus, and Ernst & Young, who have certified the financial
statements and supporting schedules of ARG (as hereinafter defined) and
its subsidiaries incorporated by reference in the Registration
Statements and the Prospectus, are independent public accountants as
required by the Act, the Exchange Act and the applicable Rules and
Regulations.
(xxvi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
7
(xxvii) The Company has filed or incorporated by reference as
exhibits to the Registration Statements all material contracts,
understandings and agreements to which the Company is a party and that
are required to be filed pursuant to Item 601 of Regulation S-K.
(b) The 1818 Fund represents and warrants to, and agrees with, the
several Underwriters that:
(i) It has unencumbered title to the 25,000 shares of the
Company's Series A Preferred Stock surrendered to the Company (as
described in Section 3 hereof) to be converted into shares of
Securities, and on the First Closing Date (as hereinafter defined) and
on each Optional Closing Date (as hereinafter defined) will have valid
and unencumbered title to the Offered Securities to be delivered by it
on such date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by it on such date hereunder; and upon the
delivery of and payment for the Offered Securities on the First Closing
Date and on each Optional Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by it on such date.
(ii) It has been duly organized and is in good standing under the
laws of its jurisdiction of organization.
(iii) It has duly authorized, executed and delivered this
Agreement.
(iv) the execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over it or any of its properties, (B) any
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties is subject, or (C) its organizational
documents, except in the case of a breach, violation or default under
clauses (A) or (B) of any such agreement or instrument that will not
adversely affect the ability of The 1818 Fund to consummate the
transactions contemplated herein.
(v) the Registration Statements and the Prospectus do not, and at
the Effective Time will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that this representation, warranty
and agreement shall apply only to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished by The 1818 Fund to the Company specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(b) hereof.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between it and any person that
would give rise to a valid claim against him
8
or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(vii) It has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause
or result in stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Offered Securities.
(viii) It has not distributed and will not distribute, prior to
the completion of the Underwriters' distribution of the Offered
Securities, any offering material in connection with the offering and
sale of the Offered Securities other than the Prospectus or the
Registration Statements.
(ix) It is not prompted to sell the Firm Securities to be sold by
it by any information concerning the Company or any subsidiary that is
not set forth in the Registration Statements and the Prospectus.
(c) Xxxxxxxx X. Xxxxxx, III, one of the Management Selling
Stockholders, represents and warrants to, and agrees with, the several
Underwriters that:
(i) He has unencumbered title to the (a) 57,813 shares of Class B
Common Stock, $0.01 par value per share (the "CLASS B COMMON STOCK") of
the Company to be converted into shares of Securities, (b) 42,187
shares of Securities and (c) options to purchase 26,070 shares of
Securities to be exercised to purchase shares of Securities, each as
delivered to the Transfer Agent (as hereinafter defined) as described
in Section 3, and on each Optional Closing Date hereinafter mentioned,
will have valid and unencumbered title to the Optional Securities to be
delivered by him on such date and full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
Optional Securities to be delivered by him on such date hereunder; and
upon the delivery of, and payment for, the Optional Securities on each
Optional Closing Date hereunder the several Underwriters will acquire
valid and unencumbered title to the Optional Securities to be delivered
by him on such date.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between him and any person that
would give rise to a valid claim against him or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(iii) He has not taken, and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause
or result in stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Offered Securities.
(d) Xxxx X. Xxxxxxxx, one of the Management Selling Stockholders,
represents and warrants to, and agrees with, the several Underwriters that:
(i) He has unencumbered title to the options to purchase 67,500
shares of Securities delivered to the Transfer Agent as described in
Section 3 hereof to be exercised to purchase shares of Securities, and
on each Optional Closing Date hereinafter mentioned, will have
9
valid and unencumbered title to the Optional Securities to be delivered
by him on such date and full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Optional
Securities to be delivered by him on such date hereunder; and upon the
delivery of, and payment for, the Optional Securities on each Optional
Closing Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Optional Securities to be delivered by him on
such date.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between him and any person that
would give rise to a valid claim against him or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(iii) He has not taken, and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause
or result in stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, The 1818 Fund agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from The 1818 Fund, at a purchase price of $[-] per share, that number of Firm
Securities set forth opposite the name of such Underwriter in Schedule C hereto.
The 1818 Fund (i) has surrendered to the Company certificates
representing its shares of the Company's Series A Preferred Stock, together with
written notice to the Company electing to convert, (a) immediately prior to the
First Closing Date, 22,886 of such shares into shares of Securities in respect
of the Firm Securities (b) immediately prior to each Optional Closing Date, that
number of shares of the Company's Series A Preferred Stock (up to a maximum of
2,114 of such shares) into shares of Securities in respect of Optional
Securities as is necessary to satisfy the Underwriters' option to purchase
Optional Securities, in each case, to be delivered by it to the Underwriters
under this Agreement and (ii) has delivered to LaSalle National Bank, N.A.
("TRANSFER AGENT") a letter of instruction relating to the transfer of such
shares of Securities to the Underwriters under this Agreement. Xxxxxxxx X.
Xxxxxx, III, one of the Management Selling Stockholders, has delivered to the
Transfer Agent certificates representing shares of Securities, shares of Class B
Common Stock to be converted into shares of Securities and options to be
exercised in respect of shares of Securities for the Optional Securities to be
delivered by him to the Underwriters under this Agreement, together with a
letter of instruction relating to the transfer of such shares to the
Underwriters under this Agreement. Xxxx X. Xxxxxxxx, one of the Management
Selling Stockholders, has delivered to the Transfer Agent options to be
exercised in respect of shares of Securities for the Optional Securities to be
delivered by him to the Underwriters under this Agreement, together with a
letter of instruction relating to the transfer of such shares to the
Underwriters under this Agreement.
Each Selling Stockholder agrees that the shares represented by the
certificates referred to above, the options and the shares to be issued upon
exercise of the options are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Selling Stockholders described
above are to that extent irrevocable, and that the obligations of the Selling
Stockholders hereunder shall not be terminated by operation of law, whether by
the death of any individual
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Selling Stockholder or the occurrence of any other event, or in the case of a
trust, by the death of any trustee or trustees or the termination of such trust.
If any individual Selling Stockholder or any such trustee or trustees should
die, or if any other such event should occur, or if any of such trusts should
terminate, before the delivery of the Offered Securities hereunder, certificates
for such Offered Securities shall be delivered by the Transfer Agent in
accordance with the terms and conditions of this Agreement as if such death or
other event or termination had not occurred, regardless of whether or not the
Transfer Agent shall have received notice of such death or other event or
termination.
The Transfer Agent will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to Bear, Xxxxxxx & Co. Inc.
("BEAR, XXXXXXX") drawn to the order of The 1818 Fund III, L.P. at the office of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at
10:00 A.M., New York time, on May [-], 2004, or at such other time not later
than seven full business days thereafter as Bear, Xxxxxxx, the Company and The
1818 Fund determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the Firm
Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as Bear, Xxxxxxx requests and will be made
available for checking and packaging at the above office of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from Bear, Xxxxxxx given to the
Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The 1818 Fund, in priority to the Management
Selling Stockholders, agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from The 1818 Fund, up to the
number of Optional Securities set forth opposite its name on Schedule B that
shall be purchased from it for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by Bear, Xxxxxxx to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. Thereafter, and only to the extent that
The 1818 Fund has previously sold all of its Optional Securities, each of the
Management Selling Stockholders agrees, severally and not jointly, to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from each Management Selling Stockholder, that number of Optional
Securities (rounded up or down, as determined by Bear, Xxxxxxx in its
discretion, in order to avoid fractions) obtained by multiplying the number of
Optional Securities set forth in such notice that have not been previously sold
(or committed to be sold) to the Underwriters by The 1818 Fund by a fraction the
numerator of which is the number of Optional Securities set forth opposite the
name of such Management Selling Stockholder in Schedule B hereto under the
heading "Number of Optional Securities to be Sold" and the denominator of which
is the total number of Optional Securities that remain unsold (or uncommitted)
and shall be purchased from the Management Selling Stockholders for the account
of each Underwriter in the same proportion as the number of Firm Securities set
forth opposite such Underwriter's name bears
11
to the total number of Firm Securities (subject to adjustment by Bear, Xxxxxxx
to eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by Bear, Xxxxxxx to the
Company and the Selling Stockholders.
Each time for the delivery of, and payment for, the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
Bear, Xxxxxxx but shall be not later than five full business days after written
notice of election to purchase the Optional Securities is given. The Transfer
Agent will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to Bear, Xxxxxxx drawn to the order of [-] at the above office
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as Bear, Xxxxxxx requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) or (2) (as consented by Bear, Xxxxxxx) of Rule
424(b) not later than the second business day following the execution
and delivery of this Agreement or, if applicable and if consented to by
Bear, Xxxxxxx, subparagraph (4) or (5). The Company will advise Bear,
Xxxxxxx promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by Bear,
Xxxxxxx.
(b) The Company will advise Bear, Xxxxxxx promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related
12
prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect
such amendment or supplementation without Bear, Xxxxxxx'x consent,
which consent shall not be unreasonably withheld; and the Company will
also advise Bear, Xxxxxxx promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time prior to the completion of the distribution of
the Offered Securities by the Underwriters is complete, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify
Bear, Xxxxxxx of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither Bear, Xxxxxxx'x consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as hereinafter defined), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (seven of which will be signed and will include
all exhibits), each related preliminary prospectus, and, until the
distribution of the Offered Securities by the Underwriters is complete,
the Prospectus and all amendments and supplements to such documents, in
each case in such quantities as Bear, Xxxxxxx reasonably requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as Bear,
Xxxxxxx designates and will continue such qualifications in effect so
long as required for the distribution; provided, however, that the
Company shall not be required in connection therewith to qualify as a
foreign corporation
13
in any jurisdiction in which it is not now so qualified or to take any
action that would subject it to general consent to service of process
or taxation in any jurisdiction in which it is not now so subject.
(g) During the period of two years hereafter, the Company will
furnish, upon request, to the Representatives and to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives, upon request, (i) as soon
as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Exchange Act or
mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as Bear, Xxxxxxx may reasonably
request.
(h) For a period of 90 days after the date of the initial public
offering of the Offered Securities (the "LOCK-UP PERIOD"), the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of Bear, Xxxxxxx except (i) issuances
of additional Securities or grants of employee or director stock
options or other equity awards pursuant to the terms of a plan in
effect on the date hereof or described in the Company's 2004 proxy
statement, (ii) issuances of Securities pursuant to the exercise of
such options or the exercise of any other employee or director stock
options outstanding on the date hereof, (iii) issuances of Securities
by the Company in connection with one or more acquisitions up to an
aggregate amount for all such acquisitions in this clause (iii) of $60
million (based on the closing price of the Securities on the New York
Stock Exchange on the date the number of Securities the Company is
required to issue in connection with such acquisition is established);
provided that, in the case of this clause (iii), each recipient of such
Securities shall have, prior to any such issuance, entered into a
written lock-up agreement that is identical in all material respects
with this Section 5(h) with respect to the then-remaining portion of
the Lock-up Period or (iv) issuances of Securities in connection with
the conversion of shares of Class B Common Stock or Series A Preferred
Stock outstanding as of the date hereof.
(i) The Selling Stockholders agree, for the Lock-up Period, except
as provided herein, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional shares of
the Securities of the Company or any additional securities convertible
into or exchangeable or exercisable for any shares of Securities, enter
into a transaction which would have the same effect, or enter into any
swap, hedge or other arrangement that transfers, in whole or part, any
of the economic consequences of ownership of the Securities, whether
any such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of Bear,
Xxxxxxx. The foregoing agreement shall not apply to (i) sales of
securities withheld in connection with a cashless exercise of options
that would otherwise expire prior to the end of the Lock-up Period,
(ii) any securities acquired in the open market after the date hereof,
14
and (iii)(A) transfers of securities by will, testate or in testate
succession or bona fide gift or gifts to a charitable organization, an
heir or immediate family member or a trust or partnership the
beneficiaries or partners of which are heirs or immediate family
members of such Selling Stockholder, and (B) if the Selling Stockholder
is a partnership, limited liability company or a corporation, general
distributions by such Selling Stockholder to its partners, members or
shareholders; provided that, as to both (A) and (B) above each
resulting transferee executes and delivers to Bear, Xxxxxxx an
agreement satisfactory to it certifying that such transferee agrees to
be bound by the terms of this Section 5(i).
(j) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Selling Stockholders under this Agreement, for any
filing fees and other expenses (including fees and disbursements of
counsel, including counsel to The 1818 Fund) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as Bear, Xxxxxxx designates and the printing of memoranda
relating thereto, for the filing fee incident to the review by the
National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities, for any transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants of the Company within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that, as it relates to the Company:
(i) in their opinion the financial statements of the
Company for the years ended December 31, 2002 and 2003
examined by them and included or incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
15
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included or
incorporated by reference in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included or incorporated by reference in the
Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations or any material modifications
should be made to such unaudited financial statements
for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
its consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
or to a subsequent specified date not more than three
business days prior to the date of this Agreement
there were any decreases, as compared with the
corresponding period of the previous year in
consolidated operating revenues or net operating
income or the total or per share amounts of
consolidated net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal
16
controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
(b) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Ernst &
Young confirming that they are independent public accountants of ARG
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that as it relates to
ARG:
(i) in their opinion the financial statements of ARG
examined by them and included or incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standard No. 71, Interim Financial
Information, on the unaudited financial statements of ARG for
the three months ended March 31, 2004;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of ARG, inquiries of officials of ARG or
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
17
(A) at the date of the latest available
balance sheet read by such accountants, or
at a subsequent specified date not more than
three business days prior to the date of
this Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long- term debt of ARG and
its consolidated subsidiaries or, at the
date of the latest available balance sheet
read by such accountants, there was any
decrease in its consolidated net current
assets or net assets, as compared with
amounts shown on ARG's balance sheet for
March 31, 2004;
(B) for the period from April 1 to April 30,
2004, or to a specified subsequent date not
more than three days prior to this Agreement
there were any decreases, as compared with
the corresponding period of the previous
year in consolidated operating revenues or
net operating income or the total or per
share amounts of consolidated net income.
except in all cases set forth in Clauses (A) and (B)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of ARG and its subsidiaries
subject to the internal controls of ARG's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of
the Initial Registration Statements is subsequent to the
execution and delivery of this Agreement, "REGISTRATION
STATEMENTS" shall mean the initial registration statement as
proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time,
(ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional
Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial
Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended
by the post-effective amendment to be filed shortly prior to
its Effective time, and (iii) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements. All
financial statements and schedules included in material
18
incorporated by reference into the Prospectus shall be deemed
included in the Registration Statements for purposes of this
subsection.
(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by Bear, Xxxxxxx. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by Bear, Xxxxxxx. If the Effective
Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Management Selling Stockholder,
the Company or the Representatives, shall be contemplated by the
Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters, including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representatives, be likely
to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States; or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the
United States, any declaration of war by Congress or any other national
or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives,
the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency makes it impractical or inadvisable to
19
proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) The Representatives shall have received an opinion and a
negative assurance statement, dated such Closing Date, of Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, substantially in the
form attached hereto as Schedule D-1 and D-2, respectively.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx X. Xxxxxxx, General Counsel of the Company,
to the effect that all of the outstanding shares of Securities, other
than the Offered Securities, have been duly authorized by the Company
and are validly issued, fully paid and nonassessable.
(g) The Representatives shall have received an opinion, dated
the Optional Closing Date, of Xxxxxx, Xxxxxxx & Xxxxx LLP, counsel for
the Management Selling Stockholders, substantially in the form attached
hereto as Schedule E.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP,
counsel for The 1818 Fund, substantially in the form attached hereto as
Schedule F.
(i) The Representatives shall have received from Mayer, Brown,
Xxxx & Maw LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Selling Stockholders and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
dates of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
20
(k) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(l) The Representatives shall have received a letter, dated
such Closing Date of Ernst & Young which meets the requirements of
subsection (b) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(m) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of
executive officers and directors of the Company that are not Management
Selling Stockholders.
(n) The Representatives shall have received a certificate,
dated such Closing Date, of each Selling Stockholder in which such
Selling Stockholder, to the best of its knowledge after reasonable
investigation, shall state that its representations and warranties in
this Agreement are true and correct and that such Selling Stockholders
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing
Date.
(o) The 1818 Fund shall have delivered to Bear, Xxxxxxx on the
First Closing Date and the Management Selling Stockholders shall have
delivered to the Representative on the Optional Closing Date, their
respective properly completed and signed copy of IRS Form W-9.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. Bear, Xxxxxxx may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable for the fees
and expenses of more than one law firm, in addition to local counsel; provided,
further, that
21
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the foregoing
indemnity shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Offered
Securities concerned, to the extent that a prospectus relating to such Offered
Securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter.
(b) The Selling Stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Selling Stockholders shall not be liable for the fees and expenses of more than
one law firm, in addition to local counsel; provided, further that with respect
to The 1818 Fund, the foregoing shall be limited to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by The 1818 Fund specifically for use
therein; provided, further, that the Management Selling Stockholders will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below; provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the foregoing indemnity shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact
22
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter; and provided,
further, that the liability under this subsection of each Selling Stockholder
shall be limited to an amount equal to the aggregate gross proceeds to such
Selling Stockholder from the sale of Securities sold hereunder less the
applicable underwriting discounts and commissions. The parties hereto understand
and agree that the information furnished by The 1818 Fund to the Company
specifically for use in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, consists only of that information required to
be disclosed pursuant to Item 507 of Regulation S-K.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and The 1818 Fund, and each of their respective directors
and officers and each person, if any, who controls the Company or The 1818 Fund
within the meaning of Section 15 of the Act, and each Management Selling
Stockholder against any losses, claims, damages or liabilities to which the
Company or such Selling Stockholder or any such director, officer or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of (i) the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the third paragraph under the caption
"Underwriting" and the information contained in the eleventh and twelfth
paragraphs under the caption "Underwriting"; provided, however, that the
Underwriters shall not be liable for the fees and expenses of more than one law
firm, in addition to local counsel.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such
23
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e) (i) no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
by which the gross proceeds (less the applicable underwriting discounts and
commissions) to such Selling Stockholder for the sale of Securities sold
hereunder exceeds the amount of any damages that such Selling Stockholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The Selling Stockholders' obligations in this
subsection (e) to contribute are several in proportion to the
24
aggregate sale price to the public of all Securities sold by each Selling
Stockholder, including any Optional Securities, and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, Bear,
Xxxxxxx may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to Bear, Xxxxxxx, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders, except as provided in Section 9 (provided that if such
default occurs with respect to Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(j) and the
respective obligations of the Company, the Selling Stockholders, and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under
25
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clauses (iii) through (vii) of Section 6(d), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxx Parish, at (000) 000-0000, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at Genesee
& Wyoming Inc., 00 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: Xxxx X.
Xxxxxxxx, at (000) 000-0000, or, if sent to The 1818 Fund, will be mailed,
delivered or telegraphed and confirmed to it at The 1818 Fund III, L.P., 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: [-], at (___) ___-____, or, if sent to
the Management Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to Genesee & Wyoming Inc., Attention: Xxxx X.
Xxxxxxxx, at (000) 000-0000; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
26
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
----------------------------------
Xxxxxxxx X. Xxxxxx, III
----------------------------------
Xxxx X. Xxxxxxxx
THE 1818 FUND III, L.P.
By Xxxxx Brothers Xxxxxxxx & Co.
Its General Partner
By
--------------------------------
Partner
GENESEE & WYOMING INC.
By
--------------------------------
[Title]
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By Bear, Xxxxxxx & Co. Inc.
By
-------------------------------
Managing Director
27
SCHEDULE A
NUMBER OF FIRM
SECURITIES
FIRM SELLING STOCKHOLDER TO BE SOLD
------------------------ ----------
The 1818 Fund III, L.P......................................... 3,358,303
---------
Total................................................. 3,358,303
=========
28
SCHEDULE B
NUMBER OF
OPTIONAL
SECURITIES
OPTIONAL SELLING STOCKHOLDERS TO BE SOLD
----------------------------- ----------
The 1818 Fund III, L.P. ................................ 310,175
Xxxxxxxx X. Xxxxxx, III ................................ 126,070
Xxxx X. Xxxxxxxx ....................................... 67,500
-------
Total ......................................... 503,745
=======
29
SCHEDULE C
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Bear, Xxxxxxx & Co. Inc..........................................
Credit Suisse First Boston LLC...................................
Deutsche Bank Securities Inc.....................................
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc....
Xxxxxx Xxxxxx & Company, Inc.....................................
Avondale Partners, LLC...........................................
---------
Total................................................... 3,358,303
=========
30
SCHEDULE D-1
[FORM OF STB OPINION]
31
SCHEDULE D-2
[FORM OF STB NEGATIVE ASSURANCE STATEMENT]
32
SCHEDULE E
[FORM OF HSE OPINION]
33
SCHEDULE F
[FORM OF PWRW&G OPINION]
34
