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EXHIBIT 1.1
Form of Underwriting Agreement
______ Shares of Common Stock
NATIONSRENT, INC.
FORM OF UNDERWRITING AGREEMENT
August __, 1998
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT ALEX. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
As Representatives (the "Representatives") of the
several Underwriters named in
Schedule I attached hereto
c/o BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
NationsRent, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
________ shares (the "Firm Shares") of its common stock, par value $0.01 per
share (the "Common Stock") and, for the sole purpose of covering over-allotments
in connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional _______ shares (the "Additional Shares") of
Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares." The Shares are more fully
described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
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(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and __________
amendments thereto, on Form S-1 (No. 333-56233), for the registration of the
Shares under the Securities Act of 1933, as amended (the "Act"). Such
registration statement, including the prospectus, financial statements and
schedules, exhibits and all other documents filed as a part thereof, as amended
at the time of effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of effectiveness pursuant
to paragraph (b) of Rule 430A of the Rules and Regulations of the Commission
under the Act (the "Regulations"), is herein called the "Registration Statement"
and the prospectus, in the form first filed with the Commission pursuant to Rule
424(b) of the Regulations or filed as part of the Registration Statement at the
time of effectiveness if no Rule 424(b) filing is required, is herein called the
"Prospectus." The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430 of the Regulations.
(b) At the time the Registration Statement was first filed
with the Commission, at the time any amendment to the Registration Statement was
filed with the Commission, at the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, at the time the Prospectus is first filed with the
Commission pursuant to Rule 424(b) of the Regulations, at the time any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date and the Additional Closing Date, if any, (as hereinafter
defined), the Registration Statement and the Prospectus and any amendments
thereof and supplements thereto complied or will comply in all material respects
with the applicable provisions of the Act and the Regulations and did not or
will not contain an untrue statement of a material fact and did not or will not
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus, in light of
the circumstances under which they were made, not misleading. When any related
preliminary prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendments thereto or pursuant to Rule 424(a) of the Regulations) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and warranty is
made in this subsection (b), however, with respect to any information contained
in or omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives expressly
for use in connection with the preparation thereof. The Company acknowledges
that the statements set forth in the last paragraph of the cover page of the
Prospectus, in the paragraph on the
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inside front cover page of the Prospectus relating to possible stabilization
transactions, in the table listing Underwriters under the caption "Underwriting"
in the Prospectus and in the third and eighth paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing by or on behalf of any Underwriter expressly for use in any registration
statement relating to the Shares as originally filed, in the Registration
Statement or in any amendment thereof, any related preliminary prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
(c) Neither the Commission nor the "Blue Sky" or securities
authority of any jurisdiction has issued an order (a "Stop Order") suspending
the effectiveness of the Registration Statement, preventing or suspending the
use of any preliminary prospectus, the Prospectus, the Registration Statement or
any amendment or supplement thereto, refusing to permit the effectiveness of the
Registration Statement, or suspending the registration or qualification of the
Firm Shares or the Additional Shares, nor, to the knowledge of the Company, has
any of such authorities instituted or threatened to institute any proceedings
with respect to a Stop Order. As used in this Agreement, "knowledge" of the
Company means the knowledge of the officers of the Company after due inquiry
under the circumstances.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified the financial
statements and supporting schedules included in the Registration Statement and
whose reports are filed with the Commission as part of the Registration
Statement, are independent public accountants with regard to the Company and its
subsidiaries as required by the Act and the Regulations.
(e) Subsequent to the respective dates as of which information
is given in the Registration Statement (and the Prospectus), except as set forth
in the Registration Statement (and as to the representation made at the Closing
Date and the Additional Closing Date, the Prospectus), there has been no
material adverse change, or any development involving a prospective material
adverse change, in the business, prospects, properties (whether or not insured),
assets, earnings, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, (any such event, a
"Material Adverse Effect"). Since the date of the latest balance sheet presented
in the Registration Statement (and, as to the representation made at the Closing
Date and the Additional Closing Date, the Prospectus), except as expressly
disclosed in the Registration Statement (and, as to the representation made at
the Closing Date and the Additional Closing Date, the Prospectus), neither the
Company nor any of its subsidiaries has (i) incurred or undertaken any
liabilities or obligations, direct or contingent, not in the ordinary course of
business that are material to the Company and its subsidiaries taken as a whole,
(ii) entered into any material transaction not in the ordinary course of
business and consistent with past practice (iii) entered into any agreement or
made any commitment to acquire any company or business that is material to the
Company and its subsidiaries taken as a whole or (iv) declared or paid any
dividend or made any distribution on any shares of its capital stock or
redeemed,
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purchased or otherwise acquired or agreed to redeem, purchase or otherwise
acquire any shares of its capital stock.
(f) The Company has the requisite corporate power and the
authority to enter into this Agreement, perform each of its obligations
hereunder and issue, sell and deliver the Shares to be sold by it hereunder.
This Agreement and the transactions contemplated herein have been duly and
validly authorized by the Company, and this Agreement has been duly and validly
executed and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except (i) as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors rights generally and by general
equitable principles and (ii) to the extent that rights to indemnity and
contribution hereunder may be limited by federal or state securities laws or the
public policy underlying such laws.
(g) The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby (including the issuance, sale and delivery of the Shares by
the Company) do not and will not (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, give rise
to any right to accelerate the maturity or require the prepayment of any
material obligation of the Company or any of its subsidiaries or require any
consent, or result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries, pursuant to the terms of any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a party or
by which any of such corporations or their respective properties or assets may
be bound, or (ii) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets.
(h) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets is
required for the valid execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered by
the Company hereunder, except the registration under the Act of the Shares and
such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
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(i) All of the outstanding shares of capital stock of the
Company are duly and validly authorized and issued, fully paid and
non-assessable, were issued in compliance with all applicable United States
federal and state securities laws and were not issued and are not now in
violation of or subject to any preemptive rights or, except as disclosed in the
Registration Statement, co-sale rights, registration rights, repurchase rights,
rights of first refusal or any other similar right. The Shares have been duly
and validly authorized and, when issued, delivered and sold in accordance with
this Agreement, will be duly and validly authorized issued and outstanding,
fully paid and non-assessable, and will not have been issued in violation of or
be subject to any preemptive rights, co-sale rights, transfer restrictions,
registration rights, repurchase rights, rights of first refusal or any similar
rights and will be free and clear of any pledges, liens, security interests,
charges, claims or encumbrances of any kind (other than those created by the
Underwriters). The Company had, at March 31, 1998, a duly authorized and
outstanding capitalization as set forth under the caption "Capitalization" in
the Registration Statement and as shall be set forth in the Prospectus. The
Common Stock, the Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Registration Statement and shall be as set
forth in the Prospectus. There is no commitment, plan or arrangement to issue,
and no outstanding option, warrant, security or other right or instrument which
requires, permits or provides for the issuance, subscription or purchase of, any
share of capital stock of the Company or any security or other instrument which
by its terms is convertible into, exercisable for, or exchangeable for capital
stock of the Company, except as accurately described in all material respects in
the Registration Statement. Except as described in the Registration Statement or
as may be required by applicable securities laws, there are no restrictions on
the voting or transfer of any shares of capital stock of the Company.
(j) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which could not, individually or in the aggregate, have a Material
Adverse Effect, and neither the Company nor any of its subsidiaries has received
any claim or notice from any official in any jurisdiction that it is required to
be qualified or licensed to do business in any jurisdiction in which it is not
so qualified or licensed. Each of the Company and its subsidiaries has all
requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits of
and from all public, regulatory or governmental agencies and bodies, to own,
lease and operate its properties and conduct its business as now being conducted
and as described in the Registration Statement and as shall be described in the
Prospectus, and the Company has not received any notice of any proceedings
relating to the revocation or modification of any thereof, and no such consent,
approval, authorization, order, registration, qualification, franchise license
or permit contains
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a materially burdensome restriction that is not accurately disclosed in all
material respects in the Registration Statement and the Prospectus.
(k) All of the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued and are not now in violation of or subject to
any preemptive rights, repurchase rights or rights of first refusal and are
owned directly by the Company, free and clear of any lien, pledge, encumbrance,
claim, security interest, restriction on transfer, stockholders' agreement,
voting trust or other defect of title whatsoever. Except for the wholly-owned
subsidiaries of the Company listed on Exhibit 21 to the Registration Statement,
the Company owns no controlling interest in any other corporation, partnership
or other entity and does not directly or indirectly own any shares of stock or
any other securities of any corporation or have any equity interest in any firm,
partnership, association or other entity, other than minority investments in
marketable securities that may be made in the ordinary course of business as a
part of its investment of excess cash assets.
(l) Except as described in the Registration Statement and as
shall be described in the Prospectus, there is no action, suit, investigation or
proceeding, governmental or otherwise, to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject or which is pending or, to the knowledge of the Company,
contemplated against the Company or any of its subsidiaries which (i) if
adversely decided or concluded, could reasonably be expected to have a Material
Adverse Effect, (ii) is required to be disclosed in the Registration Statement
or (iii) seeks to restrain, enjoin, prevent the consummation of, or otherwise
challenge the issuance of, the Shares or the execution and delivery of this
Agreement or any of the other transactions contemplated hereby, or questions the
legality or validity of any such transactions or that seeks to recover damages
or obtain other relief in connection with any of such transactions.
(m) The Company has not taken and will not 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 Common Stock to facilitate the sale
or resale of the Shares or otherwise.
(n) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and as will be set
forth in the Prospectus present fairly the financial condition, results of
operations, stockholders' equity and cash flows and other information purported
to be shown therein of the Company, its subsidiaries and its predecessor and the
businesses acquired by the Company at the dates and for the periods indicated
present fairly the information required to be stated therein. Such financial
statements and supporting schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, and are in accordance in all material respects with the books
and records of the Company, its
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subsidiaries and its predecessor and the businesses acquired by the Company,
respectively. No other financial statements or supporting schedules are required
by Form S-1 to be included in the Registration Statement or the Prospectus. The
financial data set forth in the Registration Statement and as will be set forth
in the Prospectus under the captions "Prospectus Summary -- Summary Consolidated
Historical and Pro Forma Financial Data", "Capitalization", "Selected
Consolidated Historical and Financial Information and Operations Data" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" fairly present, on the basis stated in the Registration Statement
and as will be stated in the Prospectus, the information set forth therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and as will be set forth in
the Prospectus. The pro forma and "as adjusted" financial information included
under the captions "Prospectus Summary - Summary Consolidated Historical and Pro
Forma Financial Data", "Capitalization", "Selected Consolidated Historical and
Pro Forma Financial Information and Operations Data" and "Management's
Discussion and Analysis of Financial Conditions and Results of Operations" and
elsewhere in the Registration Statement and as will be included in the
Prospectus that gives effect to the issuance of the Shares, the application of
the net proceeds therefrom and the other transactions and events specified
therein presents fairly the information contained therein, has been properly
compiled on the basis of the assumptions set forth with respect thereto, and the
assumptions used in the preparation thereof are reasonable, the pro forma
adjustments to the historical figures have been properly applied to such figures
and such pro forma financial information complies in all material respects with
the applicable accounting requirements of the Commission. All other financial
information and statistical data set forth in the Registration Statement and as
will be set forth in the Prospectus are, in all material respects, accurately
presented and, in the case of such financial information, has been prepared on
an accounting basis consistent with the financial statements included in the
Registration Statement and as will be included in the Prospectus.
(o) Each of the Company and its subsidiaries has good and
marketable title to all the properties and assets reflected as owned in the
financial statements (or elsewhere) in the Registration Statement and as will be
set forth in the Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those, if any, reflected in the financial
statements, or (ii) those which are not material in amount and do not adversely
affect the use made and proposed to be made of such property by the Company and
its subsidiaries. Each of the Company and its subsidiaries holds its leased
properties under valid, subsisting and enforceable leases, with such exceptions
as are not, individually or in the aggregate, material and do not, individually
or in the aggregate, interfere with the use made or proposed to be made of such
properties by the Company or any of its subsidiaries. Except as disclosed in the
Registration Statement and as will be disclosed in the Prospectus, each of the
Company and its subsidiaries owns or leases all such properties as are necessary
to its operations as now conducted or as proposed to be conducted.
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(p) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" or an entity "controlled by" an "investment company" within
the meaning of Investment Company Act of 1940 and the rules and regulations
promulgated thereunder.
(q) The Company and each of its subsidiaries own or possess
adequate licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights, technology and know-how necessary to conduct the
business now or proposed to be conducted by the Company and each of its
subsidiaries as described in the Registration Statement and as will be described
in the Prospectus, except for those patents, trademarks, service marks, trade
names, copyrights, technology and know-how the failure to own or have the right
to use would not have a Material Adverse Effect, and, except as disclosed in the
Registration Statement and as will be disclosed in the Prospectus, neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with (or knows of such infringement of or conflict with) rights of
others with respect to any patents, trademarks, service marks, trade names,
copyrights or know-how; and to the knowledge of the Company, the Company and
each of its subsidiaries do not in the conduct of their business as now
conducted or proposed to be conducted, infringe or conflict with any such rights
of any third party.
(r) There are no contracts, indentures, mortgages, loan
agreements, notes, leases or other agreements or instruments or other documents
(collectively, the "Documents") required to be described or referred to in, or
filed with, the Registration Statement and, in respect of the representation
made at the Closing Date and the Additional Closing Date, the Prospectus, other
than those described or referred to therein or filed as exhibits thereto; all
such descriptions are accurate in all material respects and present fairly the
information required to be described therein. All such Documents to which the
Company is a party have been duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company and are
enforceable against the Company in accordance with the terms thereof, except as
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
(s) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business), or
guarantees of indebtedness by the Company or any of its subsidiaries to or for
the benefit of any of the officers or directors of the Company or any of its
subsidiaries or any of the members of the families of any of them, and there are
no business relationships or related-party transactions involving the Company or
any subsidiary or any other person required to be described in the Registration
Statement and the Prospectus, except as disclosed in the Registration Statement
and as will be disclosed in the Prospectus; all such descriptions are accurate
in all material respects and present fairly the information required to be
described.
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(t) Each of the Company and its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(u) Neither the Company nor any of its subsidiaries is in
violation or breach of, or in default (nor has any event occurred which with
notice, or lapse of time, or both, would constitute a default) under, any
contract, agreement, indenture, loan or other agreement, instrument, mortgage,
note, permit, lease, license, arrangement or understanding to which the Company
or any of its subsidiaries is a party or by which the Company, any of its
subsidiaries or any of their respective properties may be bound where such
default, either individually or together with all such other defaults, could
reasonably be expected to have a Material Adverse Effect or a material adverse
effect on the ability of the Company to perform its obligations hereunder. Each
such contract, agreement, indenture, loan or other agreement, instrument,
mortgage, note, permit, lease, license, arrangement and understanding is in full
force and effect and is the legal, valid, and binding obligation of the Company
or one of its subsidiaries, as the case may be, and, to the knowledge of the
Company, the other parties thereto and is enforceable against the Company or one
of its subsidiaries, as the case may be, and, to the knowledge of the Company,
against the other parties thereto in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors generally and by general equity principles. Each of the
Company and each of its subsidiaries enjoys peaceful and undisturbed possession
under all material leases and material licenses under which the Company and its
subsidiaries are operating. Except as disclosed in the Registration Statement,
neither the Company nor any of its subsidiaries is a party to or bound by any
contract, agreement, indenture, loan or other agreement, instrument, mortgage,
note, permit, lease, license, arrangement or understanding, or subject to any
charter or other restriction, which has had or is reasonably expected in the
future to have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries is in violation or breach of, or in default with respect to, any
term of its respective certificate of incorporation or bylaws. Neither the
Company nor any of its subsidiaries is in violation of, or in default with
respect to, any law, rule, regulation, order, judgment or decree, except such as
are described in the Registration Statement and as will be described in the
Prospectus or such as, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(v) The Company has obtained from each of the Company's
executive officers, directors and security holders set forth in Schedule II a
written agreement, in a form
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or forms approved by the Representatives and their counsel (a "Lock-Up
Agreement"), that for a period of 180 days from the date of the Prospectus each
such holder will not, without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co.
Inc., offer, sell, agree to sell, grant any option for the sale of or otherwise
dispose of (other than (i) by gift provided that the donee agrees in writing
with the Company to be bound by the terms of such written agreement and (ii)
with respect to the persons whose names are marked with an asterisk on Schedule
II, by pledge in a bona fide loan transaction with an unaffiliated third party
lender or an affiliated lender provided that the lender agrees in writing with
the Company to be bound by the terms of such written agreement) directly or
indirectly any shares of capital stock (or any security convertible into,
exercisable for or exchangeable for capital stock) of the Company now owned by
such holder.
(w) The Common Stock has been approved for listing on the New
York Exchange, subject to official notice of issuance.
(x) Except as described in the Registration Statement and as
will be described in the Prospectus, (i) no labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is threatened and (ii) the Company is not aware of any labor
disturbance by the employees of any of its significant manufacturers, suppliers,
customers or contractors, that could reasonably be expected in the case of both
(i) and (ii) to have a Material Adverse Effect.
(y) Except as described in the Registration Statement and as
will be described in the Prospectus, (i) the Company is not a party to or bound
by any stockholders agreements or voting trusts with respect to any securities
of the Company and (ii) there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person or entity granting
such person or entity 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 entity or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement.
(z) Except as disclosed in the Registration Statement and as
will be disclosed in the Prospectus, neither the Company nor any of its
subsidiaries is in material violation of any federal, state or local law or
regulation relating to occupational safety and health or to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws, codes and regulations relating to
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous materials or substances, solid
or hazardous wastes, petroleum and petroleum products (collectively, "Materials
of Environmental Concern"), or otherwise relating to the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of Materials of Environment Concern, underground or above
ground storage tanks and related piping, and emissions, discharges, releases or
threatened
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releases therefrom and damages to natural resources (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the Company or any of its subsidiaries is in
violation of any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation with
respect to which the Company has received written notice, and no written notice
by any person or entity alleging potential liability for investigatory costs,
clean-up costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased, controlled
or operated by the Company or any of its subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries or any person
or entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; (iii) to the knowledge of the Company, there are no past or present
actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or disposal of
any Material of Environmental Concern, that reasonably could result in a
violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law; (iv) the Company and each of its subsidiaries have received
all permits, licenses or other approvals required under applicable federal,
state and local occupational safety and health and Environmental Laws and
regulations to conduct their respective businesses; and (v) the Company and each
of its subsidiaries is in compliance with all terms and conditions of any such
permits, licenses or approvals, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which could not, individually or together with all such other violations or
failures, have a Material Adverse Effect.
(aa) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that
such
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associated costs and liabilities would not, individually or in the aggregate,
have a Material Adverse Effect.
(bb) The Company, either directly or through one or more of
its subsidiaries, maintains reasonably adequate insurance with respect to its
business and properties and the business and properties of its subsidiaries.
(cc) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 (Chapter 92-198, Laws of
Florida). Neither the Company, nor any affiliate thereof, does business with the
government of Cuba or with any person or affiliate located in Cuba.
(dd) Each of the Company and its subsidiaries has (i) filed
all federal, state and foreign tax returns which are required to be filed
through the date hereof, and all such tax returns are true, complete and
accurate in all material respects, or (ii) received valid extensions thereof and
have paid all taxes shown on such returns and all assessments received by them
except (a) for such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided, or (b) where, in the case of
state and local and foreign tax returns, the failure to file in clause (i), or
extend the due date of or pay the same in clause (ii), in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; the Company has no
knowledge of any tax deficiency which has been or might be asserted against the
Company or any of its subsidiaries which could have a Material Adverse Effect;
to the Company's knowledge, all tax liabilities are adequately provided for on
the consolidated books of the Company.
(ee) The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the "Code") of
which the Company or such subsidiary is a member. No "reportable event" (as
defined under ERISA) has occurred or is reasonably expected to occur with
respect to any "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained
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by the Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which would cause the
loss of such qualification.
(ff) Year 2000 Disclosure. The Company has made all
disclosures in the Registration Statement and the Prospectus required by the
Commission's Staff Legal Bulletin No. 5 related to Year 2000 compliance.
2. Purchase, Sale and Delivery of the Shares.
(a) The Company agrees to sell to the Underwriters and, on the
basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a price per share of $_______, the number of Firm Shares set forth opposite its
name in Schedule I hereto plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof.
(b) Delivery of certificates for the Firm Shares and payment
of the purchase price shall be made at the office of Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Representatives and the Company, at 10:00 A.M. New York City
time, on the third or fourth business day (as permitted under Rule 15c6-1 under
the Exchange Act) (unless postponed in accordance with the provisions of Section
9 hereof) following the date of the effectiveness of the Registration Statement
(or, if the Company elects to rely on Rule 430A of the Regulations, the third or
fourth day (as permitted under Rule 15c6-1 under the Exchange Act) after the
determination of the initial public offering price of the Shares), or such other
time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the Company in
immediately available funds by wire transfer, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Firm Shares to be purchased by them. Certificates for the Firm Shares
shall be registered in such name or names and in such authorized denominations
as the Representatives may request in writing at least two full business days
prior to the Closing Date. The Company will permit the Representatives to
examine and package such certificates for delivery at least one full business
day prior to the Closing Date at the office of Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(c) In addition, the Company hereby grants to the several
Underwriters the option (the "Option") to purchase all or any portion of the
Additional Shares at the same purchase price per share to be paid by the several
Underwriters to the Company for the Firm Shares as set forth in Section 2(a),
for the sole purpose of covering over-allotments in the sale of Firm Shares by
the several Underwriters. The number of Additional Shares to be
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purchased from the Company by each Underwriter (as adjusted by the
Representatives to eliminate fractions) shall be determined by multiplying the
number of Additional Shares to be sold by the Company by a fraction, the
numerator of which is the number of Firm Shares purchased by such Underwriter
and the denominator of which is the aggregate number of Firm Shares purchased by
all the Underwriters from the Company hereunder, plus any additional number of
Shares which the Underwriters may become obligated to purchase pursuant to the
provisions of Section 9 hereof. The Option may be exercised at any time, in
whole or in part, on or before the thirtieth day following the date of this
Agreement, by written notice by the Representatives to the Company in the manner
specified in Section 12 hereof. Such notice shall set forth the aggregate number
of Additional Shares as to which the Option is being exercised and the date and
time, as reasonably determined by the Representatives, when the Additional
Shares are to be delivered (such date and time being herein sometimes referred
to as the "Additional Closing Date"); provided, however, that the Additional
Closing Date shall not be earlier than the Closing Date or earlier than the
second full business day after the date on which the Option shall have been
exercised nor later than the eighth full business day after the date on which
the Option shall have been exercised (unless such time and date are postponed in
accordance with the provisions of Section 9 hereof). Certificates for the
Additional Shares shall be registered in such name or names and in such
authorized denominations as the Representatives may request in writing at least
two full business days prior to the Additional Closing Date. The Company will
permit the Representatives to examine and package such certificates for delivery
at least one full business day prior to the Additional Closing Date at the
office of Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Delivery of the certificates for the Additional Shares shall
be made to the Representatives, for the respective accounts of the Underwriters,
against payment by the Representatives, on behalf of the respective
Underwriters, for the Additional Shares in immediately available funds by wire
transfer at the office of Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as may be mutually acceptable.
(d) The Underwriters shall not be obligated to purchase any
Firm Shares from the Company except upon tender to the Underwriters by the
Company of all of the Firm Shares. The Company shall not be obligated to sell or
deliver Firm Shares except upon tender of payment by the Underwriters for all
the Firm Shares agreed to be purchased by them hereunder.
3. Offering. As soon after the Registration Statement becomes effective
as the Representatives deem it advisable to do so, the Underwriters propose to
offer the Shares for sale to the public upon the terms set forth in the
Prospectus.
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4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible. If the Registration Statement has become or becomes effective pursuant
to Rule 430A or the filing of the Prospectus is otherwise required under Rule
424(b), the Company will file the Prospectus (properly completed) pursuant to
Rule 424(b) within the prescribed time period and will provide evidence
satisfactory to the Representatives of such timely filing.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when the Registration Statement
and any amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (iv) of the issuance by the Commission
of any Stop Order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments or other
communication from the Commission and (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for that purpose. If the Commission shall propose or enter a Stop Order at any
time, the Company will make every reasonable effort to prevent the issuance of
any such Stop Order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b)) that differs from the
prospectus on file at the time of the effectiveness of the Registration
Statement before or after the effective date of the Registration Statement to
which the Representatives shall reasonably object in writing after being timely
furnished in advance a copy thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in the
judgment of the Representatives or the Company include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at any
time to amend the Registration Statement or supplement the Prospectus to comply
with the Act or the Regulations, the Company will notify the Representatives
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to the Representatives) that will
correct such statement or omission
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and will use its best efforts to have any such amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the Representatives
two signed copies of the Registration Statement, including exhibits and all
amendments thereto, and the Company will promptly deliver to those persons,
including the Representatives, whom the Representatives identify to the Company
such number of copies of any preliminary prospectus, the Prospectus, the
Registration Statement, and all amendments of and supplements to such documents,
if any, as the Representatives may reasonably request. The Company consents to
the respective use of any preliminary prospectus or the Prospectus or any
amendment or supplement thereto by the Representatives and by all dealers to
whom the Shares may be sold, in connection with the offering or sale of the
Shares, as appropriate, and as to the Prospectus or any amendment or supplement
thereto during such period of time thereafter as the Prospectus is required by
law to be delivered in connection therewith.
(d) The Company will take such action as the Representatives
may reasonably request, at or prior to the time of effectiveness of the
Registration Statement, to qualify or register the Shares for offering and sale
under the securities or "Blue Sky" laws relating to the offering or sale of the
Shares of such jurisdictions as the Representatives may designate and to
maintain such qualifications and registrations in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11 (a) of the Act) to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after the end
of its fiscal quarter in which the first anniversary date of the effective date
of the Registration Statement occurs, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the Regulations and in such
numbers as the Representatives shall reasonably request) covering a period of at
least twelve consecutive months beginning on the first day of the first full
calendar month after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the
Prospectus, the Company will not, without the prior written consent of Bear,
▇▇▇▇▇▇▇ & Co. Inc., issue, sell, offer or agree to sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any Common Stock
(or any securities convertible into, exercisable for or exchangeable for Common
Stock) other than the sale of the Shares hereunder, the issuance of shares of
Common Stock to third parties not affiliated with the Company (or, in the case
of a third party affiliated with the Company, provided that the third party
agrees in writing with the Company to be bound by the terms of a Lock-Up
Agreement) as consideration for the Company's acquisition from such third
parties of equipment rental companies, the issuance of options pursuant to the
Company's 1998 Stock Option Plan and the issuance of
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shares of Common Stock upon the exercise of the options (i) granted prior to the
date hereof to the persons specified on Schedule II and (ii) granted to
non-employee directors, and the Company will obtain and deliver to the
Representatives concurrently with the execution of this Agreement the Lock-Up
Agreements specified in Section 1(w).
(g) The Company will furnish to its stockholders as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash flow of
the Company certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), summary financial information of the Company for such
quarter in reasonable detail.
(h) During a period of three years from the effective date of
the Registration Statement, the Company will furnish to the Representatives
copies of all reports or other communications (financial or other) furnished to
stockholders, and deliver to the Representatives as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed.
(i) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(j) The Company will comply with all registration, filing and
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which may from time to time be applicable to the Company.
(k) The Company will comply with all provisions of all
undertakings contained in the Registration Statement.
(l) Prior to the Closing Date or the Additional Closing Date,
as the case may be, the Company will not issue any press release or other
communication directly or indirectly and will not hold any press conference with
respect to the Company, or its business, prospects, properties, assets,
earnings, condition (financial or other), results of operations or this offering
without the prior consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., which consent will not be
unreasonably withheld or delayed.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any
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amendments thereof or supplements thereto (including, without limitation, fees
and expenses of the Company's accountants and counsel), the underwriting
documents (including this Agreement, the Agreement Among Underwriters and the
Selling Agreement) and all other documents related to the public offering of the
Shares (including those supplied to the Underwriters in quantities as
hereinabove stated), (ii) the issuance, transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes payable thereon, (iii)
the qualification of the Shares under state or foreign securities or Blue Sky
laws, including the costs of printing and mailing a preliminary and final "Blue
Sky Survey" and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto, (iv) listing the Shares on the New York Stock
Exchange, (v) filing fees of the Commission and the National Association of
Securities Dealers, Inc.; (vi) printing certificates representing the Shares and
(vii) the cost and charges of any transfer agent or registrar.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject, in the Representatives' discretion, to the
condition that all the representations and warranties of the Company herein
contained are true and correct, as of the date hereof and as of the Closing Date
(for purposes of this Section 6 "Closing Date" shall refer to the Closing Date
for the Firm Shares and any Additional Closing Date, if any, for the Additional
Shares), to the absence from any certificates, opinions, written statements or
letters furnished to the Representatives or to ▇▇▇▇, Hastings ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP ("Underwriters' Counsel") pursuant to this Section 6 of any qualification or
limitation not previously approved in writing by the Representatives, to the
performance by the Company of its obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 p.m., New York City time on the date of this Agreement, or at
such later time and date as shall have been consented to in writing by the
Representatives; if the Company shall have elected to rely upon Rule 430A of the
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion pursuant to Rule 424(b) under the Act within the applicable time
period prescribed in the Regulations for such filing in accordance with Section
4(a) hereof, and, at or prior to the Closing Date no Stop Order shall have been
issued and no proceedings therefor shall have been initiated or threatened by
the Commission or the authorities of any such jurisdiction; (ii) all requests
for additional information on the part of the Commission shall have been
complied with to the Commission's reasonable satisfaction and (iii) after the
date hereof, no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
the Underwriters and the Underwriters did not reasonably object thereto.
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(b) At the Closing Date, the Representatives shall have
received the opinion of Akerman, Senterfitt & ▇▇▇▇▇▇, counsel for the Company,
dated the Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel to the effect that:
(i) Each of the Company and its subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company and its subsidiaries is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which would not,
individually or in the aggregate, have a Material Adverse Effect. Each
of the Company and its subsidiaries has all requisite power and
authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus.
(ii) All of the outstanding shares of capital stock
of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable, and to the knowledge of
such counsel were not issued and to the knowledge of such counsel are
not now in violation of or subject to any preemptive rights, repurchase
rights or rights of first refusal and are owned directly by the
Company, free and clear of any lien, pledge, encumbrance, claim,
security interest, restriction on transfer, stockholders' agreement,
voting trust or other defect of title whatsoever.
(iii) The Company has authorized capital stock as set
forth in the Registration Statement and the Prospectus under the
caption "Capitalization." All the outstanding shares of capital stock
of the Company are duly authorized and validly issued, are fully paid
and non-assessable, were issued in accordance with all applicable
United States federal and state securities laws and to the knowledge of
such counsel were not issued and are not now in violation of or subject
to any preemptive rights or, except as disclosed in the Prospectus,
co-sale rights, registration rights, repurchase rights, rights of first
refusal or any other similar right. The Shares have been duly
authorized and when issued, delivered and sold by the Company against
payment therefor in accordance with this Agreement will be duly
authorized, validly issued and outstanding, fully paid and
non-assessable and to the knowledge of such counsel will not be subject
to any preemptive rights, co-sale rights, transfer restrictions,
registration rights, rights of first refusal or any similar rights and
will be free and clear of any pledges, liens, security interests,
charges, claims or encumbrances of any kind (other than those created
by the Underwriters). Upon delivery of certificates evidencing the
Shares and payment therefor as contemplated
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hereby, the Underwriters will acquire the Firm Shares (and the
Additional Shares, if any) free of any adverse claim (as such term is
defined in Section 8-302 of the New York Uniform Commercial Code),
assuming the Underwriters are acting in good faith and without notice
of any adverse claim. The Common Stock, the Firm Shares and the
Additional Shares conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus
under the caption "Description of Capital Stock." The form of
certificate evidencing the Shares to be delivered hereunder is in due
and proper form under Delaware law.
(iv) Except as disclosed in or described in the
Prospectus, to the knowledge of such counsel there is no commitment,
plan, or arrangement to issue and no outstanding options, warrants or
other rights requiring, permitting or providing for the issuance of,
and no written commitments entered into by the Company to issue,
subscribe or purchase any shares of capital stock of the Company or any
security or other instrument convertible into exercisable for or
exchangeable for capital stock of the Company. Except as disclosed in
the Prospectus, to the knowledge of such counsel there is outstanding
no security or other instrument which by its terms is convertible into
or exchangeable for capital stock of the Company. Except as described
in the Prospectus, to the knowledge of such counsel there are no
restrictions on the voting or transfer of shares of capital stock of
the Company.
(v) Except as described in the Registration
Statement, (a) the Company is not a party to or bound by any
stockholders' agreements or voting trusts with respect to any
securities of the Company and (b) there are no contracts, written
agreements or written understandings between the Company or any of its
subsidiaries and any person or entity granting such person or entity
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 entity or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement in the Registration Statement.
(vi) The Common Stock and the Shares to be sold
under this Agreement have been duly authorized for listing on the New
York Stock Exchange, subject to official notice of issuance.
(vii) The Company has the requisite corporate power
and authority to enter into this Agreement, perform each of its
obligations hereunder, and to issue, sell and deliver the Shares to the
Underwriters. This Agreement and the transactions contemplated herein
have been duly and validly authorized, executed and delivered by the
Company.
(viii) To the knowledge of such counsel based upon a
certificate of an appropriate executive officer of the Company, there
is no action, suit,
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investigation or proceeding, governmental or otherwise, before any
court or before or by any public, regulatory or governmental agency or
body pending or threatened against or involving any of the properties
or business of, the Company or any of its subsidiaries which is of a
character required to be disclosed in the Registration Statement and
the Prospectus which has not been properly disclosed therein.
(ix) The execution, delivery, and performance by the
Company of this Agreement and the consummation of the transactions
contemplated hereby (including the issuance, sale and delivery of the
Shares by the Company) do not and will not (A) conflict with or result
in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) under, give rise to any right to accelerate the
maturity, or require the prepayment of any material obligation, known
to such counsel, of the Company or any of its subsidiaries or require
any consent, or result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any agreement, instrument,
franchise, license or permit known to such counsel to which the Company
or any of its subsidiaries is a party or by which any of such
corporations or their respective properties or assets may be bound or
(B) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, or
(c) to the knowledge of such counsel, violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets, except for such violations or
conflicts as would not have a Material Adverse Effect.
(x) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental, or regulatory agency or body of the
United States or the State of Florida or under the Delaware General
Corporation Law having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is
required for the valid execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby,
except for (1) such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters (as to which such counsel need express no opinion)
and (2) such as have been made or obtained under the Act.
(xi) The Registration Statement and the Prospectus
and any amendments thereof or supplements thereto (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Regulations, except that such counsel
expresses no opinion, view or belief as to (a) the financial statements
or
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related notes or schedules or other financial information included in
or excluded from the Registration Statement, the Prospectus or any
amendment or supplement to the Registration Statement or the
Prospectus, or (b) the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus and
each amendment or supplement to the Registration Statement and the
Prospectus except as and to the extent expressly set forth in the
paragraph following paragraph (xvi) below.
(xii) The Registration Statement is effective under
the Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued, no proceedings
therefor have been initiated or threatened by the Commission and all
filings required by Rule 424(b) under the Act have been made.
(xiii) To the knowledge of such counsel, the Company
is not in violation or breach of, or in default (nor has any event
occurred which with notice, or lapse of time, or both, would constitute
a default) under any contract, agreement, indenture, loan or other
agreement, instrument, mortgage, note, permit, lease, license,
arrangement or understanding to which the Company or any of its
subsidiaries is a party or by which the Company, any of its
subsidiaries or any of their respective properties may be bound where
such default could reasonably be expected to have a Material Adverse
Effect or a material adverse effect on the ability of the Company to
perform its obligations hereunder. The Company is not in violation or
breach of, or in default with respect to, any term of its certificate
of incorporation or bylaws.
(xiv) The statements under the caption "Description
of Capital Stock" in the Prospectus, insofar as such statements
constitute summaries of the legal matters and documents referred to
therein, fairly present the information called for with respect to such
legal matters and documents and fairly summarize such legal matters and
documents.
(xv) To the knowledge of such counsel, the Company
and each of its subsidiaries has all consents, approvals,
authorizations, orders, registrations, qualifications, licenses and
permits as may be required of it under any applicable federal, state or
local laws or regulations to own, lease and operate its properties and
to conduct its business as described in the Prospectus. To the
knowledge of such counsel, the Company is in compliance with all terms
and conditions of any such consent, approval, order, registration,
qualification, license or permit, except for such violations of law or
regulation, such failure to receive required consent, approval, order,
registration, qualification, permit or such failure to comply with the
terms and conditions of such consent, approval, order, registration,
qualification, license or permit, as would not, individually or in the
aggregate, have a Material Adverse Effect.
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(xvi) The Company is not, and upon consummation of
the transactions contemplated hereby will not be, subject to
registration as an "investment company" or an entity "controlled by an
investment company" within the meaning of the Investment Company Act of
1940 and the rules and regulations promulgated thereunder.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and
representatives of the Company, representatives of the independent
certified public accountants of the Company and representations of the
Underwriters at which the contents of the Registration Statement, the
Prospectus, any amendment thereof or supplement thereto and related
matters were discussed. On the basis of the foregoing, no facts have
come to the attention of such counsel which has led such counsel to
believe that either the Registration Statement at the time it became
effective, or any amendment thereof made prior to the Closing Date as
of the date of such amendment, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and as of the date of
such opinion contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief, view or opinion
with respect to the financial statements and schedules and other
financial data included or incorporated by reference in the
Registration Statement or the Prospectus) and such counsel does not
know if any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus that are not
filed or described as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and certificates or other written statements of officers of departments
of various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and each of its subsidiaries. The
opinion of such counsel for the Company shall state that the opinion of any such
other counsel is in form satisfactory to such counsel and, in their opinion, the
Representatives and they are justified in relying thereon.
(c) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be reasonably
satisfactory in form
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and substance to the Representatives and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to Underwriters' Counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Date, the Representatives shall have
received a certificate of the Company, executed on behalf of the Company by the
Chief Executive Officer and President and the Chief Financial Officer of the
Company, dated the Closing Date to the effect that (i) the conditions set forth
in subsection (a) of this Section 6 have been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are true and accurate, (iii) at the time
of the Closing on the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any Material
Adverse Effect, or any development involving a prospective material adverse
change, on the Company, except in each case as described in the Prospectus.
(e) At the time this Agreement is executed and at the Closing
Date, the Representatives shall have received a letter, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, independent public accountants for the Company, dated as of the date of
this Agreement and as of the Closing Date, as appropriate, addressed to the
Underwriters and in form and substance satisfactory to the Representatives, to
the effect that: (i) they are independent certified public accountants with
respect to the Company within the meaning of the Act and the Regulations and
stating that the answer to Item 10 of the Registration Statement is correct
insofar as it relates to them; (ii) in their opinion, the financial statements
and schedules of the Company included in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in all
material respects with the applicable accounting requirements of the Act and the
applicable published rules and regulations of the Commission thereunder; (iii)
on the basis of procedures consisting of a reading of the latest available
unaudited interim consolidated financial statements of the Company and its
subsidiaries, a reading of the minutes of meetings and consents of the
stockholders and boards of directors of the Company and its subsidiaries and the
committees of such boards subsequent to [December 31, 1997], inquiries of
officers and other employees of the Company and its subsidiaries who have
responsibility for financial and accounting matters of the Company and its
subsidiaries with respect to transactions and events subsequent to [December 31,
1997] and other specified procedures and inquiries to a date not more than five
days prior to the date of such letter, nothing has come to their attention that
would cause them to believe that: (A) the unaudited consolidated financial
statements and schedules of the Company presented in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and, if applicable, the Exchange
Act and the applicable published rules and regulations of the Commission
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thereunder or that such unaudited consolidated financial statements are not
fairly presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration Statement and the
Prospectus; (B) the unaudited pro forma financial statements and other
information contained in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Regulations or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of these
statements; (C) with respect to the period subsequent to [December 31, 1997]
there were, as of the date of the most recent available monthly consolidated
financial statements of the Company and its subsidiaries, if any, and as of a
specified date not more than five days prior to the date of such letter, any
changes in the capital stock or long-term indebtedness of the Company or any
decrease in the net current assets or stockholders' equity of the Company, in
each case as compared with the amounts shown in the most recent balance sheet
presented in the Registration Statement and the Prospectus, except for changes
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter or (D) that during
the period from [December 31, 1997] to the date of the most recent available
monthly consolidated financial statements of the Company and its subsidiaries,
if any, and to a specified date not more than five days prior to the date of
such letter, there was any decrease, as compared with the corresponding period
in the prior fiscal year, in total revenues, or total or per share net income,
except for decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur or which are set forth in such letter; and
(iv) stating that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, and other financial information pertaining
to the Company and its subsidiaries set forth in the Registration Statement and
the Prospectus, which have been specified by the Representatives prior to the
date of this Agreement, to the extent that such amounts, numbers, percentages,
and information may be derived from the general accounting and financial records
of the Company and its subsidiaries or from schedules furnished by the Company,
with the results obtained from the application of specified readings, inquiries,
and other appropriate procedures specified by the Representatives set forth in
such letter, and found them to be in agreement.
(f) Prior to the Closing Date the Company shall have furnished
to you such further information, certificates and documents as the
Representatives may reasonably request.
(g) The Representatives shall have received from each person
who is a director or officer of the Company or such security holder as has been
heretofore designated by you and listed on Schedule II hereto the agreements
required by Section 4(f).
(h) At the Closing Date, the Shares shall have been approved
for listing on the New York Stock Exchange upon notice of issuance.
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(i) The Company and its subsidiaries shall not have sustained,
(i) since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than as set
forth or expressly contemplated in the Prospectus which loss or interference is
not immaterial to the Company and its subsidiaries taken as a whole, and (ii)
since the respective dates as of which information is given in the Prospectus,
there shall not have been any change in the capital stock (other than as
disclosed in the Prospectus) or in the long-term or short-term debt of the
Company or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company, otherwise than as set forth or
expressly contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii) of this Section 6(i), in the Representatives'
reasonable judgment, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered on the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(j) Certain trusts for the benefit of family members of H.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and certain associates of ▇▇. ▇▇▇▇▇▇▇▇ shall purchase and pay for
on the Closing Date, concurrently with the purchase of the Firm Shares by the
Underwriters, for investment purposes and at the Price to Public set forth in
the Prospectus, such number of shares as shall have an aggregate Price to Public
of $25,000,000.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, all obligations of the
Underwriters hereunder may be cancelled by the Representatives at, or at any
time prior to, the Closing Date and the obligations of the Underwriters to
purchase the Additional Shares may be cancelled by the Representatives at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or telegraph,
confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
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settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act, any state securities
or Blue Sky law or otherwise, such losses, liabilities, claims, damages,
obligations, penalties, judgments, awards, costs, disbursements or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state in any preliminary prospectus,
the Registration Statement for the registration of the Shares or the Prospectus,
or in any amendment thereof or supplement thereto, any material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that, (A) the Company will not be liable in any such case to
the extent but only to the extent that any such loss, liability, claim, damage,
obligation, penalty, judgment, award, cost, disbursement or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use therein and (B) the
indemnity agreement contained in this Section 7(a) with respect to any
preliminary prospectus (or the Prospectus) shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, liabilities, claims, damages or
expenses purchased the Shares which is the subject thereof (or to the benefit of
any person controlling such Underwriter) if at or prior to the written
confirmation of the sale of such Shares a copy of the Prospectus (or the
Prospectus as amended or supplemented) was not sent or delivered to such person
and the untrue statement or omission of a material fact contained in such
preliminary prospectus (or the Prospectus) was corrected in the Prospectus (or
the Prospectus as amended or supplemented) and delivery of such Prospectus (or
the Prospectus as amended or supplemented) would have eliminated any such loss,
liability, claim, damage or expense unless the failure is the result of
non-compliance by the Company with Section 4(c) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have
including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) are based upon any untrue statement or alleged
untrue
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statement of a material fact contained in the registration statement for the
registration of the Shares, as originally filed or any amendment thereof, or any
related preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use therein,
provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder. This indemnity will be in
addition to any liability which any Underwriter may otherwise have including
under this Agreement. The Company acknowledges that the statements set forth in
the last paragraph of the cover page, in the paragraph on the inside front cover
page of the Prospectus relating to possible stabilization transactions, in the
table listing Underwriters under the caption "Underwriting" in the Prospectus
and in the third and eighth paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the registration statement relating to
the Shares as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). 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 it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party
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or parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, then each indemnifying party shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the offering of the Shares or, if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company, and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company, on the one hand, and of the Underwriters, on the
other hand, 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
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any portion of the contribution obligation imposed on all Underwriters in
excess of its pro rata share of the total underwriting discount set forth in the
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30
table on the cover page of the Prospectus based on the number of shares
underwritten by it as compared to the number of shares underwritten by all
Underwriters who do not default on their obligations under this Section 8 less
all amounts paid or payable by such Underwriter pursuant to Section 7, and (ii)
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. For purposes of this Section 8,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of the
immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by the Representatives
pursuant to subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, as the case may be, which all Underwriters
have agreed to purchase hereunder, then such Firm Shares or Additional Shares to
which the default relates shall be purchased by the non-defaulting Underwriters
in proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, the Representatives
may in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to which
such default relates on the terms contained herein. If within five calendar days
after such a default the Representatives do not arrange for the purchase of the
Firm Shares or Additional Shares, as the case may be, to which such default
relates as provided in this Section 9, this Agreement or, in the case of a
default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company
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to sell the Additional Shares shall thereupon terminate, without liability on
the part of the Company with respect thereto (except in each case as provided in
Sections 5, 7 and 8 hereof) or the several non-defaulting Underwriters, but
nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters
(except as provided in Sections 5, 7 and 8 hereof) of its or their liability, if
any, to the other Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Representatives or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be, for a period, not exceeding
five business days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if Rule 430A
under the Act is not used, when the Representatives shall have received
notification of the effectiveness of the Registration Statement or (ii) if Rule
430A under the Act is used, when the parties hereto have executed and delivered
this Agreement. If either the initial public offering price or the purchase
price per Share has not been agreed upon prior to 5:00 P.M., New York City time,
on the fifth full business day after the Registration Statement shall have
become effective, this Agreement shall thereupon terminate without liability to
the Company or the Underwriters except as herein expressly provided. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying the Representatives or by the Representatives notifying the Company.
Notwithstanding the foregoing, the provisions
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of this Section 11 and of Sections 1, 5, 7 and 8 hereof shall at all times be in
full force and effect.
(b) The Representatives shall have the right to terminate this
Agreement at any time prior to the Closing Date (and, with respect to the
Additional Shares, the Additional Closing Date) by notice to the Company from
the Representatives, without liability (other than with respect to Sections 7
and 8 hereof) on the part of any Underwriter to the Company, if, on or prior to
such date, (i) the Company shall have failed, refused or been unable to perform
in any material respect any agreement on its, his or her part to be performed
hereunder, (ii) any other condition to the Underwriters' obligations hereunder
set forth in Section 6 is not fulfilled when and as required in any material
respect, (iii) trading in securities on the New York or American Stock Exchanges
or in the over-the-counter market shall have been suspended or materially
limited, or minimum or maximum prices shall have been established or maximum
price ranges for prices for securities shall have been required, on the New York
or American Stock Exchanges or in the over-the-counter market by the Commission,
or by such exchange or other regulatory body or governmental authority having
jurisdiction, (iv) a general banking moratorium shall have been declared by a
federal or state authority or any new restriction materially and adversely
affecting the Firm Shares or the Additional Shares, as the case may be, (v)
there shall have occurred an outbreak or escalation of armed hostilities
involving the United States on or after the date hereof, or if there has been a
declaration by the United States of a national emergency or war, the effect of
which shall be, in the Representatives' judgment, to make it inadvisable or
impracticable to proceed with the sale and delivery of the Shares on the terms
and in the manner contemplated in the Prospectus, (vi) there shall have occurred
such a material adverse change since the respective dates as of which
information is given in the Registration Statement or the Prospectus in the
condition (financial or other) of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business other than as
set forth in the Prospectus, such as, in the judgment of Bear, ▇▇▇▇▇▇▇ & Co.
Inc., makes it inadvisable or impracticable to proceed with the sale and
delivery of the Firm Shares or the Additional Shares, as the case may be, on the
terms contemplated hereby and by the Prospectus, or (vii) there shall have
occurred such a material adverse change in general economic, political or
financial conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in the judgment of
Bear, ▇▇▇▇▇▇▇ & Co. Inc., makes it inadvisable or impracticable to proceed with
the sale and delivery of the Firm Shares or the Additional Shares, as the case
may be, on the terms contemplated hereby and by the Prospectus. The right of the
Representatives to terminate this Agreement will not be waived or otherwise
relinquished by their failure to give notice of termination prior to the time
that the event giving rise to the right to terminate shall have ceased to exist,
provided that notice is given prior to the Closing Date (and, with respect to
the Additional Shares, the Additional Closing Date).
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
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(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by the
Representatives as provided in Section 11(a) hereof or (ii) Section 9(b) or
11(b) hereof (except clauses (i) and (ii) thereof), or if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of their counsel), incurred by the Underwriters
in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Department; if sent to
the Company, shall be mailed, delivered, or telegraphed and confirmed in writing
to NationsRent, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇.
13. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8 hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. The term "successors and assigns" shall not include a purchaser, in
its capacity as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
15. Counterparts. This Agreement may be executed by any one or
more of the parties hereto 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.
16. Partial Invalidity. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, and return to us five
counterparts hereof, and upon acceptance hereof by the Representatives, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that the acceptance by the Representatives of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement Among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
NATIONSRENT, INC.
By:
--------------------------------
Name:
Title:
Accepted as of the date first above written at New York, New York, on behalf of
themselves severally and the other several Underwriters named in Schedule I
hereto.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT ALEX. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By:
----------------------------------
Name:
Title:
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SCHEDULE I
Number of Firm
Name of Shares to be
Underwriter Purchased
-------------------------- ------------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
BT Alex. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Total................................................
-------------
=============
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SCHEDULE II
Names of officers, directors and security holders subject to the
lock-up provision
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