EXHIBIT 1.1
_______________SHARES
UNIVERSAL TRUCKLOAD SERVICES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[INSERT DATE]
STEPHENS INC.
As Representative of the Several Underwriters,
named in Schedule I attached hereto (the "REPRESENTATIVE")
c/o Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Dear Sirs:
1. Introductory. Universal Truckload Services, Inc., a Michigan
corporation ("COMPANY"), proposes to issue and sell to the Underwriters (as
defined below) _______ shares ("FIRM SECURITIES") of its Common Stock, no stated
par value ("SECURITIES"). The Company also proposes to issue and sell to the
Underwriters, at the option of the Underwriters, not more than ________
additional shares ("OPTIONAL SECURITIES") of its Securities, as set forth below.
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES." The Company hereby agrees with the several
Underwriters named in Schedule I hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and Parent.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-120510) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement ("INITIAL
REGISTRATION STATEMENT") has been declared effective, either (1) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (2) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and, if
so filed, will become effective upon filing pursuant to such Rule and upon
such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case of
the additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (1) if the Company
has advised the Representative that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c), or (2) if the Company has advised the Representative that
it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representative
that it proposes to file one, "EFFECTIVE TIME" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT."
The form of prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(b)") under the Act or (if no such filing is required), as included in
a Registration Statement, is hereinafter referred to as the "PROSPECTUS."
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit,
to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, and no
Additional Registration Statement has been or will be filed. The
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two preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Michigan, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified would not, individually or in the aggregate, have a
materially adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole ("MATERIALLY ADVERSE
EFFECT").
(iv) The subsidiaries listed in Exhibit 21 to the Initial
Registration Statement are the only subsidiaries of the Company within the
meaning of Rule 405 of the Act. Except for such subsidiaries and as
otherwise disclosed in each Registration Statement and the Prospectus, the
Company holds no ownership or other interest, nominal or beneficial,
direct or indirect, in any corporation, partnership, joint venture or
other business entity.
(v) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in each
Registration Statement and the Prospectus; each subsidiary of the Company
is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a Materially Adverse Effect; and all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable and, except as
disclosed in each Registration Statement and the Prospectus, is owned by
the Company, directly or indirectly, free from any liens, encumbrances or
defects, and no options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in any of the
subsidiaries of the Company are outstanding.
(vi) The authorized, issued and outstanding capital stock of the
Company is as set forth in each Registration Statement and the Prospectus
in the column headed "Actual" under the caption "Capitalization" and,
after giving effect to the offering and the other transactions
contemplated by this Agreement, the Registration Statements and the
Prospectus, will be as set forth in the column headed "Pro Forma As
Adjusted" under the caption "Capitalization." Except as set forth in each
Registration Statement and the Prospectus, there are no options, warrants
or other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock of
the Company. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and when the Offered
Securities are delivered and paid for in accordance with this Agreement on
each Closing Date (as defined below), such Offered Securities will be,
validly issued, fully paid and nonassessable and conform to the
description thereof contained in each Registration Statement and the
Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Securities.
(vii) Except as disclosed in each Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the offering contemplated by this
Agreement.
(viii) Except as disclosed in each Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned
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or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed or to be filed by the Company under the Act.
(ix) The Securities, including the Offered Securities upon their
sale pursuant to this Agreement, have been approved for quotation on The
Nasdaq Stock Market's National Market, subject to official notice of
issuance.
(x) This Agreement has been duly authorized, executed and delivered
by the Company.
(xi) Each of the Tax Separation Agreement, dated December 31, 2004
(the "TAX SEPARATION AGREEMENT"), between the Company and CenTra, Inc., a
Delaware corporation ("PARENT"), and the Transitional Services Agreement,
dated December 31, 2004 (the "TRANSITIONAL SERVICES AGREEMENT" and,
together with the Tax Separation Agreement, the "SPIN-OFF AGREEMENTS"),
between the Company and Parent has been duly authorized, executed and
delivered by the Company. Each of the Spin-Off Agreements conforms in all
material respects to the description thereof contained in each
Registration Statement and the Prospectus.
(xii) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement or the Spin-Off Agreements, except such as
have been obtained and made under the Act and the Securities Exchange Act
of 1934, as amended ("EXCHANGE ACT"), and such as may be required under
state or foreign securities laws or the by-laws or rules and regulations
of the National Association of Securities Dealers, Inc. ("NASD").
(xiii) Assuming the accuracy of the representations and warranties
of the other parties hereto, the execution, delivery and performance of
this Agreement and each of the Spin-Off Agreements and the consummation of
the transactions herein and therein contemplated will not (A) result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (1) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, (2) any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or (3) the charter or by-laws of the
Company or any such subsidiary, or (B) result in the creation of any lien,
charge, claim or encumbrance upon any property or asset of the Company or
any of its subsidiaries, except, with respect to clauses (A)(2) and (B)
above, where such breach, violation or default or such lien, charge, claim
or encumbrance would not, individually or in the aggregate, have a
Materially Adverse Effect. The Company has full corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(xiv) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in a
Registration Statement or the Prospectus or filed as exhibits to a
Registration Statement by the Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed. Each contract,
agreement or other instrument filed as an exhibit to a Registration
Statement to which it is a party has been duly authorized, executed and
delivered by the Company and any applicable subsidiaries, and the Company
is not aware of any breach or default under any such contract or document
that would call into question the validity or enforceability thereof.
(xv) Except as disclosed in each Registration Statement and the
Prospectus, the Company and its subsidiaries have good and marketable
title to all real properties and all other properties and assets owned by
them that are material to the Company and its subsidiaries taken as a
whole, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use
made or to be made thereof by them; and except as disclosed in each
Registration Statement and the Prospectus, the Company and its
subsidiaries hold any leased real or personal property that is material to
the Company and its subsidiaries taken as a whole under valid and
enforceable leases with no exceptions that would materially
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interfere with the use made or to be made thereof by them.
(xvi) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies ("PERMITS") necessary to conduct the business now
operated by them and have not received any notice of, and are not aware of
any basis for, any proceeding relating to the revocation or modification
of any such Permit that, if determined adversely to the Company or any of
its subsidiaries, would, individually or in the aggregate, have a
Materially Adverse Effect.
(xvii) No labor disputes with, or activities or proceedings of any
labor union to organize any, employees of the Company or any of its
subsidiaries exist or, to the knowledge of the Company are threatened
that, individually or in the aggregate, would have a Materially Adverse
Effect. To the knowledge of the Company, during the past three years there
has not been, and there is not currently, any effort by any third-party to
categorize any independent contractors of the Company or any of its
subsidiaries as employees for any purpose.
(xviii) The Company and its subsidiaries own, otherwise possess or
can acquire on reasonable terms adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them,
or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Materially Adverse Effect.
(xix) Except as disclosed in each Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns
or operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would, individually or in the aggregate, have a
Materially Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xx) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"), except where the failure to be in
compliance would not have a Materially Adverse Effect. No (i) "PROHIBITED
TRANSACTION" (as defined in Section 406 of ERISA or section 4975 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "CODE")), (ii) "ACCUMULATED
FUNDING DEFICIENCY" (as defined in Section 302 of ERISA) or (iii) event
set forth in Section 4043(b) of ERISA (other than an event with respect to
which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan that
Parent, the Company or any of their subsidiaries sponsors or has in the
past sponsored which, individually or in the aggregate, would have a
Materially Adverse Effect. Except as disclosed in each Registration
Statement and the Prospectus, (i) no "REPORTABLE EVENT" (as defined in
ERISA) has occurred with respect to any "PENSION PLAN" (as defined in
ERISA) that Parent, the Company or any of their subsidiaries sponsors or
has in the past sponsored for which the Company or any of its subsidiaries
would have any liability or other consequence that would have a Materially
Adverse Effect and (ii) the Company and its subsidiaries have not incurred
and do not expect to incur liability which would have a Materially Adverse
Effect under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any "PENSION PLAN" or (B) sections 412 or 4971 of the
Code. Each "PENSION PLAN" (as defined in ERISA) that Parent, the Company
or any of their subsidiaries sponsors or has in the past sponsored and in
which employees of the Company or any of its subsidiaries participate or
have participated for which the Company or any of its subsidiaries would
have any liability that would have a Materially Adverse Effect that is
intended to be qualified under section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
5
qualification. Neither the Company nor any of its subsidiaries currently
sponsor a "PENSION PLAN" (as defined in ERISA) that is subject to either
Title IV of ERISA or section 412 of the Code.
(xxi) (A) All required material federal, state and local Tax Returns
of, or consolidated Tax Returns of Parent which include, the Company or
any of its subsidiaries have been timely filed by Parent, the Company, or
the appropriate subsidiary of the Company; (B) all such Tax Returns were
correct and complete in all material respects; (C) all material Taxes owed
by or on behalf of the Company or any of its subsidiaries (whether or not
shown on any Tax Return) have been timely paid; (D) there are no pending,
or to the knowledge of the Company or any of its subsidiaries, threatened,
actions or proceedings for the assessment or collection of any material
Taxes against the Company or any of its subsidiaries, and none of the
Company, any subsidiary of the Company, or any employee of the foregoing
responsible for Tax matters expects any authority to assess any additional
material Taxes for any period for which Tax Returns have been filed; (E)
none of Parent, the Company, or any subsidiary of the Company has failed
to pay any Taxes which could result in (1) any material encumbrance on the
assets of the Company or any of its subsidiaries, or (2) a Materially
Adverse Effect; (F) none of Parent, the Company, or any subsidiary of the
Company is currently the beneficiary of any extension of time within which
to file any Tax Return of, or consolidated Tax Return of Parent which
includes, the Company or any of its subsidiaries; (G) no claim has ever
been made by an authority in a jurisdiction where Parent, the Company, or
any subsidiary of the Company does not file Tax Returns that the Company
or any such subsidiary is or may be subject to taxation by that
jurisdiction, except where being subject to taxation in such jurisdiction
or jurisdictions would not, individually or in the aggregate, result in
material, additional Tax liabilities; (H) the Company and each of its
subsidiaries has withheld and paid (or Parent has withheld and paid on
their behalf) all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party, except where the
failure to withhold or pay such Taxes would not, individually or in the
aggregate, result in material, additional Tax liabilities; (I) all
owner-operators and agents utilized in the business of the Company and its
subsidiaries qualify as independent contractors under the guidance set
forth in Internal Revenue Service ("IRS") Publication 15-A, Employer's
Supplemental Tax Guide (Supplement to Circular E, Employer's Tax Guide
(Publication 15)), except where the failure to be so qualified would not,
individually or in the aggregate, result in additional, material Tax
liabilities; and (J) none of Parent, the Company, or any subsidiary of the
Company has waived any statute of limitations in respect of Taxes of the
Company or any of its subsidiaries or agreed to any extension of time with
respect to a Tax assessment or deficiency related to the Company or any of
its subsidiaries, except for waivers relating to Parent's consolidated
Taxes for the years 1998, 1999, 2000 and 2001. For the purposes of the
foregoing, (x) "TAX" or "TAXES" means any federal, state, local, or
foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not, and including any
obligation to indemnify or otherwise assume or succeed to the Tax
liability of another person, and (y) "TAX RETURN" means any return,
declaration, report, claim for refund, or information return or statement
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
(xxii) To the knowledge of the Company, the distribution of all
outstanding shares of the capital stock of the Company by Parent to
Matthew T. Moroun and a trust controlled by Manuel J. Moroun on December
31, 2004 (the "SPIN-OFF TRANSACTION"), should qualify as a tax-free
distribution under section 355 of the Code and the Spin-Off Transaction
should not result in the imposition of any additional tax obligations on
the Company, any of its subsidiaries, or the holders of the Offered
Securities.
(xxiii) Except as disclosed in each Registration Statement and the
Prospectus, there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any such
subsidiary, would, individually or in the aggregate, have a Materially
Adverse Effect, or that would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
knowledge of the Company, threatened or contemplated.
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(xxiv) The Company and its subsidiaries maintain insurance in such
amounts and covering such risks as the Company reasonably considers
adequate for the conduct of the business of the Company and its
subsidiaries and the value of their respective properties, all of which
insurance is in full force and effect, except where the failure to
maintain such insurance would not, individually or in the aggregate, have
a Materially Adverse Effect. Except as disclosed in each Registration
Statement and the Prospectus, there are no material claims against the
Company or any of its subsidiaries that are not covered by adequate
insurance or reserves therefor, nor to the knowledge of the Company, is
there a basis for such a claim. There are no material claims by the
Company or any of its subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or defending under a
reservation of rights clause. The Company reasonably believes that it and
its subsidiaries will be able to renew such existing insurance as and when
such coverage expires or will be able to obtain replacement insurance
adequate for the conduct of the business of the Company and its
subsidiaries and the value of their respective properties at a cost that
would not have a Materially Adverse Effect.
(xxv) KPMG LLP, which has audited the financial statements of the
Company and its subsidiaries as of and for the year ended December 31,
2003 that are included in the Registration Statements, is an independent
registered public accounting firm as required by the Act and the Rules and
Regulations. Deloitte & Touche, which has audited the financial statements
of the Company and its subsidiaries as of December 31, 2002 and for the
years ended December 31, 2001 and 2002 that are included in the
Registration Statements, is an independent registered public accounting
firm as required by the Act and the Rules and Regulations. Schneider Downs
Co., Inc., which has audited the financial statements of AFA Enterprises,
Inc. and its subsidiaries as of and for the year ended December 31, 2003
and as of and for the interim period ended August 7, 2004 that are
included in the Registration Statements, is an independent registered
public accounting firm as required by the Act and the Rules and
Regulations. McGladrey & Pullen, LLP, which has audited the financial
statements of Nunn Yoest Principals & Associates, Inc. as of and for the
year ended December 31, 2003 and as of and for the interim period ended
September 30, 2004 that are included in the Registration Statements, is an
independent registered public accounting firm as required by the Act and
the Rules and Regulations.
(xxvi) The financial statements (including any financial statement
schedules thereto) included in each Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries and AFA Enterprises, Inc. and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles
in the United States ("GAAP") applied on a consistent basis; and the
assumptions used in preparing the pro forma financial statements included
in each Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts.
(xxvii) The Company and its subsidiaries maintain a system of
internal accounting and other controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets, (C) access
to assets is permitted only in accordance with management's general or
specific authorization, and (D) the recorded accounting for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxviii) The Company has established and maintains "disclosure
controls and procedures" and "internal control over financial reporting"
(as such terms are defined in Rules 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures (A) are designed to ensure
that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's principal
executive officer and principal financial officer by others within those
entities, particularly during the periods in which periodic reports
required under the Exchange Act are being prepared and (B) are effective
to perform
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the functions for which they were established. The Company currently has a
process underway to develop internal controls and procedures, and
documentation and testing thereof, and has discussed its process with its
independent registered public accounting firm, particularly as it relates
to the attestation report on management's evaluation of internal control
over financial reporting that must be issued by the independent registered
public accounting firm in connection with the Company's Annual Report on
Form 10-K for the year ending December 31, 2005, and the Company has no
reason to believe that the independent registered public accounting firm
will be unable or unwilling to issue an unqualified attestation report.
(xxix) There are no material off-balance sheet arrangements (as
defined in Regulation S-K Item 303(a)(4)(ii)) that may have a material
current or future effect on the Company's financial condition, changes in
financial condition, results of operations, liquidity, capital
expenditures or capital resources.
(xxx) Except as disclosed in each Registration Statement and the
Prospectus, since the date of the latest audited financial statements
included in each Registration Statement and the Prospectus there has been
no materially adverse change, nor any development or event involving a
prospective materially adverse change in the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by each Registration Statement and
the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xxxi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in each Registration Statement and the Prospectus,
will not be an "investment company" within the meaning of the Investment
Company Act of 1940.
(xxxii) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of
its subsidiaries on the other hand, which is required to be described in a
Registration Statement or Prospectus which is not so described. Except as
disclosed in each Registration Statement and the Prospectus, since July
30, 2002, the Company has not, directly or indirectly, including through
any subsidiary, extended or maintained credit, or arranged for the
extension of credit, or renewed any extension of credit, in the form of a
personal loan to or for any of its directors or executive officers.
(xxxiii) The Company is in compliance with all effective and
applicable provisions of the Sarbanes-Oxley Act of 2002, as well as all
rules and regulations promulgated thereunder.
(xxxiv) The Company has not taken, directly or indirectly, any
action designed or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(xxxv) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent or employee of the
Company or any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons
of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the "FCPA"), including, without limitation,
making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to
any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and its
subsidiaries have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
8
(xxxvi) The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"MONEY LAUNDERING LAWS") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(xxxvii) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent or employee of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) Parent represents and warrants to, and agrees with, the several
Underwriters that:
(i) Parent has been duly incorporated and is an existing corporation
in good standing under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its properties and conduct its
business.
(ii) Each of this Agreement and the Spin-Off Agreements has been
duly authorized, executed and delivered by Parent.
(iii) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by Parent for the consummation of the transactions
contemplated by this Agreement or the Spin-Off Agreements, except such as
have been obtained and made under the Act and the Exchange Act, and such
as may be required under state or foreign securities laws or the by-laws
or rules and regulations of the NASD.
(iv) Assuming the accuracy of the representations and warranties of
the other parties hereto and the other party to the Spin-Off Agreements,
the execution, delivery and performance of this Agreement and each of the
Spin-Off Agreements and the consummation of the transactions herein and
therein contemplated will not (A) result in a breach or violation of any
of the terms and provisions of, or constitute a default under, (1) any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over Parent or any
subsidiary of Parent or any of their properties, (2) any agreement or
instrument to which Parent or any such subsidiary is a party or by which
Parent or any such subsidiary is bound or to which any of the properties
of Parent or any such subsidiary is subject, or (3) the charter or by-laws
of Parent or any such subsidiary, or (B) result in the creation of any
lien, charge, claim or encumbrance upon any property or asset of Parent or
any of its subsidiaries, except, with respect to clauses (A)(1), (A)(2)
and (B) above, where such breach, violation or default or such lien,
charge, claim or encumbrance would not, individually or in the aggregate,
have a materially adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Parent and its subsidiaries taken as a whole.
(v) To the knowledge of Parent, the Spin-Off Transaction should
qualify as a tax-free distribution under section 355 of the Code and the
Spin-Off Transaction should not result in the imposition of any additional
tax obligations on the Company, any of its subsidiaries, or the holders of
the Offered Securities.
(vi) To the knowledge of Parent, all of the representations and
warranties made by the Company in Section 2(a) of this Agreement are true
and correct as of the date hereof. For purposes of this paragraph (vi) and
paragraph (v) above, "KNOWLEDGE OF PARENT" means the actual knowledge of
Matthew T. Moroun, Norman E. Harned, or Fred Calderone. Each of Matthew T.
Moroun, Norman E. Harned, and Fred Calderone
9
has read the representations and warranties made by the Company in Section
2(a) of this Agreement, each Registration Statement, and the Prospectus,
and is familiar with the contents thereof.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $__________ per share, that number of
Firm Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
The Company will deliver the Firm Securities to the Representative through
the facilities of the Depository Trust Company ("DTC") unless the Representative
shall otherwise instruct, for the accounts of the Underwriters, against payment
of the purchase price in Federal (same day) funds by wire transfer to an account
or accounts at a bank designated by the Company and reasonably acceptable to the
Representative drawn to the order of Universal Truckload Services, Inc. at the
office of Scudder Law Firm, P.C., L.L.O., 411 South 13th Street, Second Floor,
Lincoln, Nebraska 68508, at 9:00 A.M., Eastern time, on ________, 2005 or at
such other time not later than seven full business days thereafter as the
Representative and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Firm Securities sold pursuant to the offering contemplated by this
Agreement. The certificates for the Firm Securities so to be delivered will be
in definitive or book-entry form, in such denominations and registered in such
names as the Representative requests and will be made available for checking and
packaging at the office of DTC or its designated custodian, unless the
Representative shall otherwise instruct, at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from the Representative given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase, in the aggregate, all or less than
all of the Optional Securities at the purchase price per Security to be paid for
the Firm Securities. The Company agrees to sell to the Underwriters the number
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by the Representative to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon written notice by Representative to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representative, through the facilities of DTC unless the Representative
shall otherwise instruct, for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by wire
transfer to an account at a bank designated by the Company and reasonably
acceptable to the Representative drawn to the order of Universal Truckload
Services, Inc. at the above office of Scudder Law Firm, P.C., L.L.O. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive or book-entry form, in such denominations and
registered in such names as the Representative requests upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the above office of DTC or its designated custodian, unless the
Representative shall otherwise instruct, at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and Parent. The Company, with respect
to Sections 5(a) through 5(l)(i) below, and Parent, with respect to Sections
5(l)(ii) and 5(m) below, agree with the several Underwriters that:
10
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b) not later than the
earlier of (i) the second business day following the execution and
delivery of this Agreement or (ii) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise the Representative promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., Eastern time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by the Representative.
(b) The Company will advise the Representative promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
the consent of the Representative; and the Company will also advise the
Representative promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its commercially reasonable best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify the Representative of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither the consent of the Representative to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representative copies of each
Registration Statement (one (1) of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as the Representative reasonably requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., Eastern time,
on the business day following the later of the execution and delivery of
this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as
available. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
11
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such U.S. jurisdictions as the
Representative reasonably designates and will continue such qualifications
in effect so long as required for the distribution; provided, however,
that in connection therewith the Company shall not be required to qualify
as a foreign corporation in any jurisdiction or to file a general consent
to service of process in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(g) For a period of 180 days after the date of the Prospectus, the
Company will not, without the prior written consent of the Representative,
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act relating to, any shares of its Securities or securities convertible
into or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, except (i) registration statements on Form S-8,
(ii) issuances of Securities pursuant to the exercise of stock options
outstanding on the date hereof, (iii) grants of stock options, shares of
restricted stock and any other awards pursuant to the terms of a plan in
effect on the First Closing Date and described in the Prospectus, and (iv)
the issuance of Securities pursuant to a plan in effect on the First
Closing Date and described in the Prospectus.
(h) The Company agrees with the several Underwriters that the Company
will pay all expenses incident to the performance of the obligations of
the Company under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel) in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for the filing fee incident to the
review by the NASD of the Offered Securities, for any travel expenses of
the Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters. The Underwriters
agree, subject to the reimbursement obligations set forth in Section 10,
that they will pay their own expenses in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities,
including, without limitation, travel expenses.
(i) The Company will apply the net proceeds from the sale of the
Offered Securities as set forth under "Use of Proceeds" in the Prospectus.
(j) The Company will use its commercially reasonable best efforts to
cause the Offered Securities to be approved for quotation on the Nasdaq
National Market prior to the First Closing Date and to maintain the
quotation of the Offered Securities on the Nasdaq National Market for a
period of two years after the First Closing Date and thereafter unless the
Company's Board of Directors determines that it is no longer in the best
interests of the Company for the Offered Securities to continue to be so
quoted.
(k) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(l) From the date hereof through the date that is 30 days after the
third anniversary of the last Closing Date hereunder: (i) the Company will
not agree to amend, or waive or take any other action (including, without
limitation, termination of the Tax Separation Agreement) materially and
adversely affecting its rights under, Section 4.3 of the Tax Separation
Agreement; and (ii) Parent will not request or propose that the Company
agree to amend, or waive or take any other action (including, without
limitation, termination of the Tax Separation Agreement) materially and
adversely affecting its rights under, Section 4.3 of the Tax Separation
Agreement.
(m) Parent will not seek indemnification or reimbursement from the
Company under the Tax Separation Agreement with respect to any liability
for Taxes (as defined in the Tax Separation Agreement) reflected on any
Tax Return (as defined in the Tax Separation Agreement) relating to any
period ending on or prior to
12
December 31, 2003 (and, after Tax Returns with respect to such period are
filed, any period ending on or prior to December 31, 2004), unless such
claim for indemnification or reimbursement is the direct result of an
examination of any such Tax Return by the IRS or other Taxing Authority
(as defined in the Tax Separation Agreement).
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and Parent herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of KPMG LLP with respect
to the financial statements and other financial, operating and statistical
information contained in each Registration Statement and the Prospectus,
in form and substance reasonably satisfactory to the Representative in all
respects.
(b) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Deloitte & Touche LLP
with respect to the financial statements and other financial, operating
and statistical information contained in each Registration Statement and
the Prospectus, in form and substance reasonably satisfactory to the
Representative in all respects.
(c) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Schneider Downs Co.,
Inc. with respect to the financial statements and other financial,
operating and statistical information contained in each Registration
Statement and the Prospectus, in form and substance reasonably
satisfactory to the Representative in all respects.
(d) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of McGladrey & Pullen, LLP
with respect to the financial statements and other financial, operating
and statistical information contained in each Registration Statement and
the Prospectus, in form and substance reasonably satisfactory to the
Representative in all respects.
(e) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., Eastern time, on the
date of this Agreement or such later date as shall have been consented to
by the Representative. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., Eastern time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
the Representative. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have
13
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued that has not been lifted and no
proceedings for that purpose shall have been instituted that have not been
terminated or, to the knowledge of the Company or the Representative,
shall be contemplated by the Commission.
(f) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries taken as one enterprise which, in the sole
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Securities or the Optional Securities, as the case
may be, on the terms and in the manner contemplated by the Prospectus;
(ii) any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in United States
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the sole judgment of the
Representative, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Firm Securities or the
Optional Securities, as the case may be, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market, or any setting
of minimum prices for trading on such exchange or market, or any
suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (v) any banking moratorium declared by
United States Federal or New York authorities; (vi) any major disruption
of settlements of securities or clearance services in the United States;
or (vii) (A) there shall have occurred any outbreak or escalation of
hostilities or acts of terrorism involving the United States or there is a
declaration of a national emergency or war by the United States or (B)
there shall have been any other calamity or crisis or any change in
political, financial or economic conditions if the effect of any such
event in (A) or (B), in the sole judgment of the Representative, makes it
impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Securities or the Optional Securities, as the case
may be, on the terms and in the manner contemplated by the Prospectus.
(g) The Representative shall have received an opinion, dated such
Closing Date, of Clark Hill P.L.C., counsel for the Company, substantially
in the form of Exhibit A hereto.
(h) The Representative shall have received an opinion, dated such
Closing Date, of Simpson Thacher & Bartlett LLP, counsel for the Company,
substantially in the form of Exhibit B-1 hereto, and a letter, dated such
Closing Date, substantially in the form of Exhibit B-2 hereto.
(i) The Representative shall have received from Scudder Law Firm,
P.C., L.L.O., counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Scudder Law Firm, P.C., L.L.O. may rely as to the incorporation of the
Company and all other matters governed by Michigan law upon the opinion of
Clark Hill P.L.C. referred to above.
(j) The Representative shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer, President or any Vice
President and a principal financial or accounting officer of the Company
in which such officers, to their knowledge after reasonable investigation,
shall state that: the representations and warranties of the Company in
this Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued
that has not been lifted and no proceedings for that purpose have been
instituted that have not been
14
terminated or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the
respective dates of the most recent financial statements in the
Prospectus, there has been no materially adverse change, nor any
development or event involving a prospective materially adverse change, in
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole except as set forth in the Prospectus or as described in
such certificate.
(k) The Representative shall have received letters, dated such
Closing Date, of KPMG LLP, Deloitte & Touche LLP, Schneider Downs Co.,
Inc., and McGladrey & Pullen, LLP which meet the requirements of
subsections (a), (b), (c) and (d) of this Section, respectively, except
that the specified date referred to in such subsections will be a date not
more than three days prior to such Closing Date for the purposes of this
subsection.
(l) On or prior to the date of this Agreement, the Representative
shall have received lockup letters in substantially the form of Exhibit C
hereto from each of the Company's officers, directors and stockholders
listed on Schedule II hereto.
(m) The Offered Securities have been approved for quotation upon
notice of issuance on the Nasdaq National Market.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably request. The Representative may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, members, directors and officers and each person, if any who
controls such Underwriter within the meaning of Section 15 of the Act
(each an "UNDERWRITER INDEMNIFIED PARTY" and, collectively, the
"UNDERWRITER INDEMNIFIED PARTIES"), against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter Indemnified Party
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof), joint or
several, arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading, and will reimburse each Underwriter Indemnified
Party for any legal or other expenses reasonably incurred by such
Underwriter Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in subsection (c) below; and provided, further, that
with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered
Securities was required to be delivered by such Underwriter under the Act
in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Securities to such person, a copy of the
Prospectus if the Company had previously furnished copies
15
thereof to such Underwriter in accordance with this Agreement.
(b) Parent will indemnify and hold harmless each Underwriter
Indemnified Party against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter Indemnified Party may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof), joint or several,
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission relates to the subject matter of any untrue or incorrect
representation or warranty of Parent in Section 2(b) of this Agreement,
and will reimburse each Underwriter Indemnified Party for any legal or
other expenses reasonably incurred by such Underwriter Indemnified Party
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that Parent will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
subsection (c) below; and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus, the indemnity agreement
contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Offered Securities concerned, to the
extent that a prospectus relating to such Offered Securities was required
to be delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at
or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter in accordance with
this Agreement. In no event, however, shall the liability of Parent for
indemnity under this Section 7(b) exceed $50.0 million.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act,
Parent, its directors and officers and each person, if any, who controls
Parent within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities to which the Company or Parent may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof), joint or several,
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made)
not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company and Parent in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the following information in the Prospectus furnished on
behalf of each Underwriter: (i) the final paragraph on the cover page,
(ii) in the table under the caption "Underwriting" listing the
Underwriters and the number of shares each has agreed to purchase, (iii)
in the first paragraph under the caption "Underwriting - Underwriting
Discounts and Offering Expenses" relating to the concession to dealers and
the re-allowance to certain other dealers, (iv) in the first paragraph
under the caption "Underwriting - Determination of Offering Price"
relating to the qualified independent underwriter, and (v) in the
paragraphs under the caption "Underwriting - Stabilization, Short
Positions and Penalty Bids" relating to over-allotment, stabilization
transactions, syndicate covering
16
transactions and penalty bids.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection
(a), (b) or (c) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may
have to an indemnified party otherwise than under subsection (a), (b) or
(c) above. In case any such action is brought against any indemnified
party and it notifies an indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation so
long as the indemnifying party continues to diligently defend such action
with counsel satisfactory to the indemnified party. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
No indemnifying party shall be liable for any settlement of any proceeding
without its prior written consent, which consent shall not be unreasonably
withheld.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a), (b) or (c) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b)
or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Parent on the one hand and
the Underwriters on the other from the offering of the Offered Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company and Parent on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Company and Parent on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, Parent or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection
(e), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
17
(f) The obligations of the Company and Parent under this Section shall
be in addition to any liability which the Company and Parent may otherwise
have and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representative may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representative and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company except as provided in Section 10 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "UNDERWRITER" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Qualified Independent Underwriter. The Company hereby confirms that at
its request Stephens Inc. has, without compensation, acted as "QUALIFIED
INDEPENDENT UNDERWRITER" within the meaning of Rule 2720 of the Conduct Rules of
the NASD in connection with the offering of the Offered Securities.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, Parent or their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, Parent or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the Offered Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, Parent and
the Underwriters pursuant to Section 7 shall remain in effect, and, if any
Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(f), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative, c/o Stephens Inc., 111 Center Street, Little Rock, Arkansas
72201, Attention: Sandra Farmer, with a copy, which shall not constitute notice,
to Scudder Law Firm, P.C., L.L.O., 411 South 13th Street, Second Floor, Lincoln,
Nebraska 68508, Attention: Mark A. Scudder, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 11355 Stephens Road,
Warren, Michigan 48089, Attention: Robert E. Sigler, Chief Financial Officer,
with a copy, which shall not constitute notice, to Simpson Thacher & Bartlett
LLP, 3330 Hillview Avenue, Palo Alto, California 94304, Attention: William B.
Brentani, or if sent to Parent, will be mailed, delivered or telegraphed and
confirmed to it at 12225 Stephens Road, Warren, Michigan 48089, Attention: Fred
P. Calderone, Vice President, with a copy, which shall not constitute notice, to
Simpson Thacher
18
& Bartlett LLP, 3330 Hillview Avenue, Palo Alto, California 94304, Attention:
William B. Brentani; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
13. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company and Parent hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, Parent
and the several Underwriters in accordance with its terms.
Very truly yours,
UNIVERSAL TRUCKLOAD SERVICES, INC.
By
----------------------------------
[INSERT TITLE]
CENTRA, INC.
By
----------------------------------
[INSERT TITLE]
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
STEPHENS INC.
Acting on behalf of themselves and as the
Representative of the several Underwriters.
By STEPHENS INC.
By
-------------------------
[INSERT TITLE]
20
SCHEDULE I
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Stephens Inc...........................................................
BB&T Capital Markets, a division of Scott & Stringfellow, Inc..........
Legg Mason Wood Walker Incorporated....................................
-----------
Total......................................................
===========
I-1
SCHEDULE II
The Company has obtained executed lockup agreements from each of the
following:
Donald B. Cochran
Robert E. Sigler
Leo Blumenauer
Matthew T. Moroun
Manuel J. Moroun
Joseph J. Casaroll
Angelo A. Fonzi
Daniel C. Sullivan
Richard P. Urban
Ted B. Wahby
II-1