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Exhibit 1.01
[ ] Shares
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UNICAPITAL CORPORATION
COMMON STOCK (PAR VALUE $.001 PER SHARE)
UNDERWRITING AGREEMENT
[ ], 1998
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[ ], 1998
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Morgan Stanley & Co. Incorporated
Smith Barney, Inc.
NationsBanc Montgomery Securities LLC
Friedman, Billings, Ramsey & Co., Inc.
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co.
International Limited
Smith Barney, Inc.
NationsBanc Montgomery Securities LLC
Friedman, Billings, Ramsey & Co., Inc.
c/o Morgan Stanley & Co.
International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs and Mesdames:
UNICAPITAL CORPORATION, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below) [ ]
shares of its common stock (par value $.001 per share) (the "FIRM SHARES").
It is understood that, subject to the conditions hereinafter stated,
[_________] Firm Shares (the "U.S. FIRM SHARES") will be sold to the several
U.S. Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in
connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and [__________] Firm Shares (the "INTERNATIONAL SHARES") will
be sold to the several International Underwriters named in Schedule II hereto
(the "INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of
such
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International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Morgan Stanley & Co. Incorporated,
Smith Barney, Inc., NationsBanc Montgomery Securities LLC and Friedman,
Billings, Ramsey & Co., Inc. shall act as representatives (the "U.S.
REPRESENTATIVES") of the several U.S. Underwriters, and Morgan Stanley & Co.
International Limited, Smith Barney, Inc. and Friedman, Billings, Ramsey & Co.,
Inc. shall act as representatives (the "INTERNATIONAL REPRESENTATIVES") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional [_______] shares of its common stock
(par value $.001 per share) (the "ADDITIONAL SHARES") if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." The shares of
common stock (par value $.001 per share) of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of the Shares up to [_______] shares for
sale to the Company's employees, officers and directors and other parties
associated with the Company (collectively, "PARTICIPANTS"), as set forth in the
Prospectus under the heading "UNDERWRITERS" (the "DIRECTED SHARE PROGRAM"). The
Shares to be sold by the Underwriters pursuant to the Directed Share Program
(the "DIRECTED SHARES") will be sold by the Underwriters pursuant to this
Agreement at the public offering price. Any Directed Shares not orally confirmed
for purchase by any Participants by the end of the first business day after the
date on which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus.
It is understood that the Company and its subsidiaries set forth on
Schedule III hereto (the "MERGER SUBSIDIARIES") have entered into the Agreements
and Plans of Contribution identified on Exhibit A attached hereto (the "MERGER
AGREEMENTS") with respect to each of American Capital Resources, Inc., Boulder
Capital Group, Inc., Cauff, Lippman Aviation, Inc., Jacom Computer Services,
Inc., KLC., Inc., Matrix Funding Corporation, Merrimac Financial Associates
("Merrimac"), Municipal Capital Markets Group, Inc., The NSJ Group, Inc.,
Portfolio Financial Servicing Company, L.P. ("PFSC"), Varilease Corporation and
Walden Asset Group, Inc. (each a "FOUNDING COMPANY" and together, the "FOUNDING
COMPANIES") in which each Merger Subsidiary will
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combine with one of the Founding Companies (each such transaction, a "MERGER"
and collectively, the "MERGERS") simultaneously with the closing of the sale of
the Shares. The Founding Companies will be the surviving corporations following
the Mergers and will become wholly owned subsidiaries of the Company
simultaneously with the closing of the sale of the Shares. For the purposes of
this Agreement, unless the context expressly otherwise requires, references to
"the Company and its subsidiaries, taken as a whole" shall be deemed to include
the Founding Companies as if the Mergers had already been completed.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS." If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the best knowledge of the Company, threatened by the Commission.
(b) (i) the Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus
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comply, and, as amended or supplemented, if applicable, will comply, in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iii) the Prospectus
does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The information contained in the Prospectus with respect to each
of the Founding Companies does not contain, and as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein with respect to each Founding Company, not
misleading.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Delaware, has, and after
giving effect to the Mergers will have, the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is, and after giving effect to the Mergers will
be, duly qualified to transact business and in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) The Merger Subsidiaries are the only subsidiaries of the Company;
each of the Merger Subsidiaries has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus, and none of such Merger Subsidiaries qualifies as a
"significant subsidiary" within the meaning of Rule 1-02 of Regulation
S-X promulgated by the Commission; all of the issued shares of capital
stock of each Merger Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities or
claims; pursuant to the Merger Agreements, each Merger Subsidiary will
merge
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with and into a respective Founding Company (or, in the case of PFSC
and Merrimac, acquire all of the outstanding partnership interests in
such Founding Company) and, upon consummation of the Mergers, each of
the Merger Subsidiaries (other than those holding all of the
outstanding partnership interests in PFSC and Merrimac) will cease to
exist as a separate entity and the Founding Companies will be the only
subsidiaries of the Company. The Company does not, and after giving
effect to the Mergers will not, own or control, directly or indirectly,
any corporation, association or other entity other than the
subsidiaries listed in Schedule III hereto and, after giving effect to
the Mergers, the Founding Companies.
(f) Each of the Founding Companies has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has, and after giving effect to
the Mergers will have, the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is, and after giving effect to the Mergers will be, duly qualified to
transact business and in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each Founding Company
prior to its Merger have been duly and validly authorized and issued,
and are fully paid and non-assessable; and, upon consummation of the
Mergers, all of the shares of capital stock of each Founding Company
will be duly and validly authorized and issued, fully paid and
non-assessable and owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims other than the pledge of such
shares pursuant to the Pledge Agreement to be entered into as of the
Closing Date by the Company and the other Pledgors named therein, in
favor of NationsBank, N.A. as Collateral Agent for the benefit of the
Creditors (as defined therein).
(g) Each of the Merger Agreements has been duly authorized, executed
and delivered by each of the parties thereto, and constitutes a valid
and binding obligation of each such party and is enforceable against
each such party in accordance with its terms; the Merger Agreements are
in full force and effect on the date hereof, and neither the Company
nor any of the Merger Subsidiaries, nor, to the knowledge of the
Company, any of the Founding Companies, is in breach of its obligations
thereunder; and, when all of the conditions to each Merger contained in
the applicable Merger Agreement have been fulfilled and the articles of
merger relating to the applicable Merger have been filed with and
accepted for record by
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the relevant state entities in accordance with the Merger Agreement,
the applicable Merger will be effective in accordance with the laws of
the relevant states.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(k) The shares of capital stock of the Company to be issued pursuant
to the Mergers have been duly authorized and, when issued pursuant to
the terms of the Merger Agreements, will be validly issued, fully-paid
and non-assessable and will not be subject to any preemptive or similar
rights.
(l) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(m) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not
contravene any provision of (i) the certificate of incorporation or
by-laws of the Company, (ii) any applicable law or any agreement or
other instrument binding upon the Company, the Merger Subsidiaries or
the Founding Companies that is material to the Company and its
subsidiaries, taken as a whole, except for such contraventions that
would not, individually or in the aggregate, have a material adverse
effect upon the Company and its subsidiaries taken as a whole and
except for such contraventions that would not materially and adversely
affect the consummation by the Company of the transactions contemplated
by this Agreement, or (iii) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any Merger Subsidiary or Founding Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by the
securities or
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Blue Sky laws of the various states in connection with the offer and
sale of the Shares.
(n) The execution and delivery by the Company, the Merger Subsidiaries
and the Founding Companies of, and the performance by the Company, the
Merger Subsidiaries and the Founding Companies, as applicable, of their
respective obligations under the Merger Agreements and the Registration
Rights Agreement and the consummation of the Mergers will not
contravene any provision of (i) the certificate of incorporation or
by-laws of the Company, the Merger Subsidiaries or the Founding
Companies, (ii) any applicable law or any agreement or other instrument
binding upon the Company, the Merger Subsidiaries or the Founding
Companies, except for such contraventions that would not, individually
or in the aggregate, have a material adverse effect upon the Company
and its subsidiaries taken as a whole and except for such
contraventions that would not materially and adversely affect the
consummation by the Company, the Founding Companies or the Merger
Subsidiaries of the transactions contemplated by the Merger Agreements
or the Registration Rights Agreement, as applicable, or (iii) any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Merger Subsidiary or
Founding Company, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by the Company, the Merger Subsidiaries or the Founding
Companies, as applicable, of their respective obligations under the
Merger Agreements or the Registration Rights Agreement other than the
filing with applicable state authorities of certificates of merger or
similar documents required under relevant state laws to effect the
consummation of the Mergers.
(o) The Company and the Founding Companies have, and after giving
effect to the Mergers, will have, good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, taken as a whole, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries, taken as a whole; and any real property and buildings
held under lease by the Company and its subsidiaries which is material
to the business of the Company and its subsidiaries, taken as a whole,
are held by them, and after giving effect to the Mergers, will be held
by them under valid, subsisting and enforceable
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leases with such exceptions as are not material and do not interfere
materially with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries, taken as a whole, in
each case except as described in or contemplated by the Prospectus.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company or any of the Founding Companies, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(q) There are no legal or governmental proceedings pending or to the
Company's best knowledge, threatened to which the Company or any of the
Founding Companies is a party or to which any of the properties of the
Company or any of the Founding Companies is subject that are required
to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(r) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(s) The Company is not and, after giving effect to the Mergers and the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(t) The Company and the Founding Companies are, and as of the Closing
Date after giving effect to the Mergers, will be (i) in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) in receipt of all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) in
compliance with all terms and conditions of any such permit, license or
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approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; there are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(u) All outstanding options, warrants and other rights to purchase,
sell or otherwise transfer shares of Common Stock and all employee
benefit plans, stock option plans and other employee compensation plans
or arrangements pursuant to which such options, warrants and other
rights may be granted have been described in the Prospectus to the
extent required therein; there are not, and upon consummation of the
Mergers, there will not be, any 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
Securities Act with respect to any securities of the Company other than
as described in the Registration Statement, or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement.
(v) The unaudited pro forma combined financial statements of the
Company and the historical financial statements of each of the Company
and the Founding Companies, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly in all
material respects the unaudited pro forma combined or historical
financial position of the Company and each of the Founding Companies,
as the case may be, as of the dates indicated and the results of their
operations and changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis, and the supporting schedules included in the Registration
Statement present fairly in all material respects the information
required to be stated therein; and the unaudited pro forma combined
financial information, and the related notes thereto, included in the
Registration Statement and the Prospectus has been prepared in
accordance with the applicable
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requirements of the Securities Act and is based upon good faith
estimates and assumptions believed by the Company to be reasonable.
(w) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and through the
Closing Date, (i) none of the Company, the Merger Subsidiaries or the
Founding Companies have incurred or will incur, as the case may be, any
material liability or obligation, direct or contingent, nor entered or
will enter, as the case may be, into any material transaction, not in
the ordinary course of business; (ii) none of the Company, the Merger
Subsidiaries or the Founding Companies has purchased or will purchase,
as the case may be, any of its outstanding capital stock; (iii) the
Company, the Merger Subsidiaries and the Founding Companies have not,
and will not, declare, pay or otherwise make any dividend or
distribution of any kind on its capital stock; and (iv) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company or any of the Founding Companies, except
in each case as described in or contemplated by the Registration
Statement (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(x) The Company and the Founding Companies own or possess, or can
acquire on reasonable terms, and, after giving effect to the Mergers,
will own or possess or have the capacity to acquire, all material
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by them in
connection with the business now operated by them, and neither the
Company nor any of the Founding Companies has received any notice of
infringement of or conflict with asserted rights of others with respect
to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(y) No material labor dispute with the employees of the Company or any
of the Founding Companies exists, except as described in or
contemplated by the Prospectus, or, to the best knowledge of the
Company, is imminent; and the Company is not currently aware of any
existing, overtly threatened or imminent labor disturbance by the
employees of any of the principal suppliers, manufacturers or
contractors of the Founding Companies that could have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
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(z) The Company and each of the Founding Companies are and, after
giving effect to the Mergers will be, insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as the Company and such Founding Companies believe to be
prudent and customary in the businesses in which they are engaged;
(aa) The Company and the Founding Companies are, and after giving
effect to the Mergers will be, in possession of all material
certificates, authorizations and permits issued by the appropriate
federal, state or local regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any Founding
Company has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(bb) The Company and each of the Founding Companies maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(cc) Except as described in the Prospectus, the Company has not sold,
issued or distributed any shares of Common Stock.
(dd) Price Waterhouse LLP who has audited certain financial statements
of the Company and certain of the Founding Companies, and Arthur
Andersen LLP., BDO Seidman LLP, Coopers & Lybrand L.L.P., Ernst & Young
LLP, Grant Thornton, KPMG Peat Marwick LLP and Tanner & Co. who have
each audited certain financial statements of certain of the Founding
Companies and each who have reported thereon, respectively are and,
during the periods covered by their reports, were, independent public
accountants with respect to the Company and the respective Founding
Companies, as applicable within the meaning of the Securities Act and
the applicable published rules and regulations thereunder.
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(ee) The Company has not and, to the Company's best knowledge, none of
the Founding Companies have, taken nor will take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Common Stock in contravention of the provisions of
Regulation M.
(ff) The Company and each of its subsidiaries and the Founding
Companies have filed all foreign, federal, state and local tax returns
that are required to be filed or have requested extensions thereof,
except in any case where the failure so to file would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and have paid all taxes required to be
paid by them and any other assessment, fine or penalty levied against
them, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by the
Prospectus and which would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(gg) The directors and officers and shareholders of the Company and
those persons who are expected to become directors, officers and
shareholders of the Company pursuant to the consummation of the
Mergers, have each (i) entered into a written agreement with the
Company substantially in the form of Exhibit B attached hereto (each
such agreement, a "Lock-up Agreement") and executed originals of each
Lockup Agreement have been delivered to you or (ii) agreed to the terms
of the Lock-up Agreement as part of the Merger Agreements.
(hh) None of the Shares distributed in connection with the Directed
Share Program will be offered or sold outside of the United States.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules I and II
hereto opposite its name at U.S. $[_____] a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to [_______]
Additional
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Shares at the Purchase Price. If the U.S. Representatives, on behalf of the U.S.
Underwriters, elect to exercise such option, the U.S. Representatives shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the U.S. Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each U.S. Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the U.S. Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of U.S. Firm Shares set forth in Schedule I hereto opposite the name of
such U.S. Underwriter bears to the total number of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or
file or cause to be filed a registration statement in respect of, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Shares to be sold hereunder, (B) the issuance by the Company of shares of
Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (C) the issuance of shares of Common Stock to be used as
consideration in connection with future acquisitions, or (D) the grant of
options to purchase shares of Common Stock under the Company's 1997 Executive
Non-Qualified Stock Option Plan, 1998 Long-Term Incentive Plan or 1998
Non-Employee Directors' Stock Plan provided such options do not vest prior to
the expiration of the 180-day period referenced herein (except with the
Underwriters' consent), and provided further, that in the case of subclauses (B)
and (C) of this paragraph, the recipient of any such shares agrees to execute a
lock-up agreement in the form of Exhibit B hereof.
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3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at U.S.
$[_____] a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S. $[__] a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S. $[__] a share, to
any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [ ], 1998, or at such other
time on the same or such other date, not later than [ ], 1998, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [_________], 1998, as shall be designated in
writing by the U.S. Representatives. The time and date of such payment are
hereinafter referred to as the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than [____] p.m. (New York City time) on the date hereof.
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The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date there shall not have occurred any change, or
any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company or any of the Founding Companies, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by Robert J. New, the
Chief Executive Officer of the Company and Jonathan New, the Chief
Financial Officer of the Company, to the effect set forth in Section
5(a) above and to the effect that the representations and warranties of
the Company, the Merger Subsidiaries and the Founding Companies
contained in this Agreement are true and correct as of the Closing Date
and that the Company, the Merger Subsidiaries and the Founding
Companies have complied with all of the agreements and satisfied all of
the conditions on their part to be performed or satisfied hereunder on
or before the Closing Date.
The officers signing and delivering such certificate may rely
upon the best of their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Morgan, Lewis & Bockius, LLP, outside counsel for the
Company, dated the Closing Date, confirming the consummation of the
Mergers, and to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business
as a foreign corporation and is in good standing under the
laws of the State of Florida;
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(ii) each subsidiary of the Company (which shall be deemed
to include the Founding Companies, the "Subsidiaries") has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business in each
jurisdiction in which it is required to do so by reason of its
ownership or leasing of real property located in such
jurisdiction or maintaining an office in such jurisdiction and
is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires it to be so, except to the extent that the failure to
be in good standing would not have a material adverse effect
on the Company and its Subsidiaries, taken as a whole;
(iii) the statements contained in the Prospectus under the
caption "Description of Capital Stock", insofar as such
statements purport to summarize certain provisions of the
capital stock of the Company, provide a fair summary of such
provisions;
(iv) the shares of Common Stock outstanding prior to the
Mergers and the issuance of the Shares have been duly
authorized and are validly issued, fully paid and
non-assessable;
(v) the shares of capital stock issued and sold by the
Company pursuant to the Mergers have been duly authorized and
are validly issued, fully paid and non-assessable and are not
subject to any preemptive or similar rights arising by
statutes or, to such counsel's knowledge (after due inquiry),
under any contract;
(vi) after giving effect to the Mergers, all of the issued
shares of capital stock of each Merger Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims other
than the pledge of such shares pursuant to the Pledge
Agreement entered into as of the Closing Date by the Company
and the other Pledgors named therein, in favor of NationsBank,
N.A. as Collateral Agent for the benefit of the Creditors (as
defined therein);
(vii) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable,
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and the issuance of such Shares will not be subject to any
preemptive or similar rights arising by statutes or, to such
counsel's knowledge (after due inquiry), under any contract;
(viii) this Agreement has been duly authorized, executed
and delivered by the Company;
(ix) each of the Merger Agreements has been duly
authorized, executed and delivered by each of the parties
thereto, and constitutes a legally valid and binding
obligation of each such party and is enforceable against each
such party in accordance with its terms, subject to (A) the
effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and (B) the effect
of general principles of equity, whether applied by a court of
law or equity; and, each Merger has been duly consummated and
is effective in accordance with all applicable law and with
the terms of the applicable Merger Agreement;
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, each of
the Merger Agreements, and this Agreement will not contravene
any provision of applicable law known to such counsel to which
the Company is known to such counsel to the subject or the
certificate of incorporation or by-laws of the Company or, to
such counsel's knowledge, result in a breach or default under
any agreement or other instrument binding upon the Company or
any of its Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or, to such counsel's
knowledge, violate any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any Subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency of the United States of America or
the State of New York is required for the performance by the
Company of its obligations under this Agreement or the Merger
Agreements or the transactions contemplated therein, except
such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of
the Shares by the U.S. Underwriters;
(xi) the statements (A) in the Prospectus under the
captions "Prospectus Summary--The Mergers," "Formation of the
Company," "Certain Relationships and Related Party
Transactions"
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and "Description of Capital Stock" and (B) in the Registration
Statement in Items 14 and 15, in each case solely insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly summarize
such legal matters, documents and proceedings;
(xii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its
Subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations or contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or filed as required;
(xiii) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be
an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xiv) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder;
(xv) the offer and sale of the shares of capital stock in
the Mergers, and all other offers and sales of securities of
the Company on or prior to the Closing Date, are exempt from
the registration requirements of Section 5 of the Securities
Act and are exempt from registration under all applicable
securities or Blue Sky laws of the various states.
In addition, such counsel shall state that, during the course
of preparation of the Registration Statement and the Prospectus, such
counsel has participated in conferences with you, officers and
representatives of the Company and representatives of the independent
certified public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related
matters were
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discussed, and, although such counsel does not pass upon and does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, no facts have come to such
counsel's attention which cause such counsel to believe that the
Registration Statement at the effective date of the Registration
Statement and at the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented, if applicable, on the date of this Agreement and on the
Closing Date, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that such counsel need express
no comment with respect to the financial statements, the notes thereto,
or any other financial or statistical information contained in the
Registration Statement or the Prospectus or incorporated by reference
therein.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Pennsylvania and New York and the
General Corporate Law of the State of Delaware, or involving the
Founding Companies prior to giving effect to the Mergers, to the extent
such counsel deems proper and to the extent specified in such opinion,
if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel
for the Company shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters and they are justified in
relying thereon.
The opinion of Morgan, Lewis & Bockius LLP shall be rendered
to the Underwriters at the request of the Company and shall so state
therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated
the Closing Date, in form and substance satisfactory to the
Underwriters.
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(e) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from each of Price Waterhouse LLP, Arthur Andersen LLP,
BDO Seidman LLP, Coopers & Lybrand L.L.P., Ernst & Young LLP, Grant
Thornton, KPMG Peat Marwick LLP and Tanner & Co., all independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letters delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(f) The Lock-up Agreements, each substantially in the form of Exhibit
B hereto, between you and certain shareholders, officers and directors
of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the
Closing Date.
(g) The Shares to be delivered on the Closing Date, or the Option
Closing Date, as the case may be, shall have been approved for listing
on the New York Stock Exchange, subject to official notice of issuance.
(h) Each of the conditions to the closing of the Mergers shall have
been satisfied by the applicable party and not waived by the Company
(except with the Underwriters' reasonable consent) as of the Closing
Date, and, none of the Merger Agreements shall have been amended as of
the Closing Date; the articles of merger (or similar documents required
under relevant state laws) relating to each Merger shall have been
filed with and accepted for record by the relevant state entities in
accordance with each Merger Agreement, and each of the Mergers shall be
effective in accordance with all applicable law and the terms of the
applicable Merger Agreement.
[(i) The closing of the credit agreement to be entered into
between the Company and NationsBank , N. A., acting as Agent, shall
have been consummated.]
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
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of the Additional Shares and other matters related to the issuance of the
Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 5:00 p.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 6(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
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(d) To cooperate with the Underwriters to qualify the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request, provided that the Company shall not be
required to file a general consent to service of process or be required
to qualify as a foreign corporation in any jurisdiction.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period beginning with the first fiscal quarter of the
Company occurring after the effective date of the Registration
Statement that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's independent public accountants in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities herein above specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) all filing fees
and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification
of the offering of the Shares by the National Association of Securities
Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to
listing the Shares on the New York Stock Exchange, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and
charges of any transfer agent,
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registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section.
(g) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent
required by the National Association of Securities Dealers, Inc. or the
rules of such association from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement, and Morgan Stanley & Co.
Incorporated will notify the Company as to which Participants will need
to be so restricted. At the request of Morgan Stanley & Co.
Incorporated, the Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time; and
the Company will pay all fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter
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through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
The Company agrees to indemnify and hold harmless Morgan Stanley & Co.
Incorporated and each person, if any, who controls Morgan Stanley & Co.
Incorporated within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act ("MORGAN STANLEY ENTITIES"), from the against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by the failure of any
Participant to pay for and accept delivery of the Directed Shares sold pursuant
to the Directed Share Program which, immediately following the effectiveness of
the Registration Statement, were subject to a properly confirmed agreement to
purchase or (ii) related to, arising out of, or in connection with the Directed
Share Program, provided that, the Company shall not be responsible under this
subparagraph (ii) for any losses, claim, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted from
the bad faith or gross negligence of Morgan Stanley Entities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
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"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would in the reasonable opinion of counsel to the
indemnified party be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(b). Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to Section 7(a) hereof in respect
of such action or proceeding, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the reasonable
fees and expenses of not more than one separate firm (in addition to any local
counsel) for the Morgan Stanley Entities for the defense of any losses, claims,
damages and liabilities arising out of the Directed Share Program. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder,
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shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not
27
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guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I or Schedule II bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or
28
29
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
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30
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
UNICAPITAL CORPORATION
By:
----------------------------
Name:
Title:
30
31
Accepted as of the date hereof
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY, INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
Acting severally on behalf of themselves and the several
U.S. Underwriters named in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By:
------------------------------------
Name:
Title:
MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
SMITH BARNEY, INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
Actingseverally on behalf of themselves and the several
International Underwriters named in Schedule II hereto.
By: Morgan Stanley & Co. International
Limited
By:
-------------------------------------
Name:
Title:
31
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SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
- ------------------------------------------------ ---------------------
Morgan Stanley & Co. Incorporated...............
Smith Barney, Inc. .............................
NationsBanc Montgomery Securities LLC
Friedman, Billings, Ramsey & Co., Inc...........
--------------
Total U.S. Firm Shares....................
==============
33
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
- ------------------------------------------------ ---------------------
Morgan Stanley & Co. International Limited.....
Smith Barney, Inc. ............................
NationsBanc Montgomery Securities LLC
Friedman, Billings, Ramsey & Co., Inc..........
--------------
Total International Firm Shares...........
==============
34
SCHEDULE III
MERGER SUBSIDIARIES
1. ACR Acquisition Corp.
2. BCG Acquisition Corp.
3. CLA Acquisition Corp.
4. JCS Acquisition Corp.
5. KSTN Acquisition Corp.
6. XFC Acquisition Corp.
7. MFA Acquisition Corp.
8. MCMG Acquisition Corp.
9. NSJ Acquisition Corp.
10. PFSC Acquisition Corp.
11. VC Acquisition Corp.
12. WAG Acquisition Corp.
35
EXHIBIT A
Agreements and Plans of Contribution
1. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, ACR, Acquisition Corp., American Capital Resources, Inc.
and Michael B. Pandolfelli and Gerald P. Ennella, dated as of February 14, 1998.
2. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, BCG Acquisition Corp., Boulder Capital Group, Inc., Roy
L. Burger and Carl M. Williams, dated as of February 14, 1998.
3. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, CLA Acquisition Corp., Stuart L. Cauff, The 1998 Cauff
Family Trust, Wayne D. Lippman and The 1998 Lippman Family Trust, dated as of
February 14, 1998.
4. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, JCS Acquisition Corp., Jacom Computer Services, Inc. and
John L.
Alfano, dated as of February 16, 1998.
5. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, KSTN Acquisition Corp., K.L.C., Inc. and Alan H. Kaufman
and Edgar W. Lee, dated as of February 14, 1998.
6. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, XFC Acquisition Corp., Matrix Funding Corporation, and
Richard C. Emery, J. Robert Bonnemort, David A. DiCesaris, Jack S. and Judith F.
Emery, Trustees for Jack S. Emery Trust, Alvin W. and Lila E. Emery, Trustees
for Alvin W. and Lila E. Emery Trust, JSE Partners, Ltd., a Utah Limited
Partnership, LBK Limited Partnership, a Utah Limited Partnership, John I.
Kasteler, Jr., Craig C. Mortensen, Shanni Staker, and Christian F. Emery dated,
as of February 14, 1998.
7. Amended and Restated Purchase Agreement by and among UniCapital
Corporation, MFA Acquisition Corp., Merrimac Financial Associates and Allan Z.
Gilbert, Jordan L. Shatz and Mark F. Cignoli dated as of February 14, 1998.
8. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, MCMG Acquisition Corp., Municipal Capital Markets Group,
Inc., and the Stockholders Named Therein, dated as of February 14, 1998.
9. Amended and Restated Agreement and Plan of Contribution by and among
UniCapital Corporation, NSJ Acquisition Corp., W. Jeptha Thornton, Richard C.
Giles, Samuel J.
36
Thornton, The 1998 Giles Family Trust and The 1998 Thornton Family Trust, dated
as of February 14, 1998.
10. Amended and Restated Purchase Agreement by and among UniCapital
Corporation, PFSC Acquisition Corp., PFSC Limited Acquisition Corp., Portfolio
Financial Servicing Company, L.P. and Partners Listed on the Signature Page,
dated as of February 14, 1998.
11. Amended and Restated Agreement and Plan of Contribution by and
among UniCapital Corporation, VC Acquisition Corp., Varilease Corporation and
the Stockholders of such company listed on the Signature Page, dated as of
February 14, 1998.
12. Amended and Restated Agreement and Plan of Contribution by and
among UniCapital Corporation, WAG Acquisition Corp., The Walden Asset Group,
Inc., and the Stockholders of such company, dated as of February 14, 1998.
2
37
EXHIBIT B
[FORM OF LOCK-UP LETTER]
[____________], 1998
Morgan Stanley & Co. Incorporated
Smith Barney, Inc.
Friedman, Billings, Ramsey & Co., Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Morgan Stanley & Co. International Limited
Smith Barney, Inc.
Friedman, Billings, Ramsey & Co., Inc.
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated
("MORGAN STANLEY") and Morgan Stanley & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with UniCapital Corporation, a Delaware corporation (the "COMPANY") providing
for the public offering (the "PUBLIC OFFERING") by the several Underwriters,
including Morgan Stanley and MSIL (the "UNDERWRITERS") of [ ]shares (the
"SHARES") of the Common Stock (par value $.001 per share) of the Company (the
"COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Morgan
Stanley on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common
38
Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of
Morgan Stanley on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------
Name
----------------------------
Address
- --------------------------
2