EXHIBIT 1.1
_______________ SHARES
OVERNITE CORPORATION
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
July [ ], 1998
July [ ], 1998
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Donaldson, Lufkin & Jenrette International
Merrill Lynch International
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
ENGLAND
Dear Sirs and Mesdames:
Overnite Corporation, a Virginia corporation (the "COMPANY"), proposes
to issue and sell to the several Underwriters, (as defined below)
________________ shares of its Common Stock, par value $.01 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
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Morgan Stanley & Co. Incorporated, Credit
Suisse First Boston Corporation, Donaldson, Lufkin & Jenrette Securities
Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Morgan Stanley & Co. International Limited, Credit Suisse First Boston
(Europe)
Limited, Donaldson, Lufkin & Jenrette International and Merrill Lynch
International 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 $.01 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 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES". The shares of
Common Stock, par value $.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK".
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 the
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.
In connection with the offering of the Shares contemplated hereby, the
Company, Union Pacific Corporation, a Utah corporation ("UPC"), Overnite
Holding, Inc., a
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Delaware corporation and wholly owned subsidiary of UPC ("OHI"), and Overnite
Transportation Company, a Virginia corporation and wholly owned subsidiary of
OHI ("OTC"), have entered into the transactions described in the Prospectus
under the caption "The Acquisition". Such transactions are referred to herein as
the "ACQUISITION".
1. Representations and Warranties of the Company, OHI and OTC. The
Company, OHI and OTC, jointly and severally, represent and warrant to and agree
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 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
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 or UPC in
writing by such Underwriter through you expressly for use therein.
(c) The Company 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 and is 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
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material adverse effect on the Company, OHI and OTC, taken as a whole.
(d) Each of OHI and OTC 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 and is 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, OHI and OTC, taken as a whole; all
of the issued shares of capital stock of OHI and OTC have been duly and
validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the UPC, OHI or OTC, as applicable, free
and clear of all liens, encumbrances, equities or claims.
(e) (i) The Company has no subsidiaries; and (ii) OTC is the only
subsidiary of OHI.
(f) This Agreement has been duly authorized, executed and delivered
by each of the Company, OHI and OTC.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(h) Prior to the issuance of the Shares, (i) the Company has issued
one hundred shares of its capital stock to [ ] in connection with the
approval of certain share option plans (ii) has not agreed, orally or in
writing, to issue or sell any shares of capital stock to any person, other
than pursuant to this Agreement or as set forth in the Prospectus and (iii)
has not conducted any business or incurred any liabilities other than as
described in the Prospectus; upon the issuance of the Shares, the Company
will have the capitalization as set forth in the Prospectus, and upon the
borrowing of funds under the Bank Credit Facility (as defined in the
Prospectus) to complete the Acquisition, as set forth in the Prospectus,
the Company will have the adjusted capitalization shown therein.
(i) The Shares of the Company have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will
be validly
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issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(j) Each of the Tax Allocation Agreement, Services Agreement, Stock
Purchase and Indemnification Agreement, the Computer and Information
Technology Agreements and Pension Plan Agreement (the "INTERCOMPANY
AGREEMENTS") conforms to its description contained in the Prospectus and
has been duly authorized by the Company, OHI and OTC, as applicable, and
when duly executed and delivered by them, each will be a legal, valid and
binding agreement of the Company, OHI and OTC enforceable against them in
accordances with its respective terms.
(k) The execution and delivery by each of the Company, OHI and OTC
of, and the performance by each of the Company, OHI and OTC of its
obligations under, this Agreement and the Intercompany Agreements will not
contravene any provision of applicable law or the articles of incorporation
or by-laws of the Company, OHI or OTC or any agreement or other instrument
binding upon the Company, OHI or OTC that is material to the Company, OHI
and OTC, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company,
OHI or OTC, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company, OHI or OTC of its obligations under this
Agreement or pursuant to the Intercompany Agreements or in connection with
the Acquisition, 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.
(l) 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, OHI and OTC, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or
threatened to which the Company, OHI or OTC is a party or to which any of
the properties of the Company, OHI or OTC 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
5
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.
(n) 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.
(o) 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.
(p) The Company, OHI and OTC (i) are 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) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or 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, OHI and OTC,
taken as a whole.
(q) Except as accounted for in the financial statements included in
the Prospectus, 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, OHI and OTC, taken as a whole.
(r) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company
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to file a registration statement under the Securities Act with respect to
any securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(s) After giving effect to the Acquisition, (i) the Company will not
own any equity interest, directly or indirectly, in any company or other
entity other than OHI, which will be a direct wholly owned subsidiary of
the Company, and OTC, which will be an indirect wholly owned subsidiary of
the Company, (ii) OHI will not own any equity interest, directly or
indirectly, in any company or other entity other than OTC, which will be a
direct wholly owned subsidiary of OHI and (iii) the Company and OHI will
have good and valid title to the stock of OHI and OTC, respectively, free
and clear of all liens, encumbrances, equities or claims.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company,
OHI and OTC have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the
ordinary course of business; and (ii) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company, OHI and OTC, except in each case as described in the Prospectus.
(u) The Company, OHI and OTC 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,
OHI and OTC, 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, OHI and
OTC; and any real property and buildings held under lease by the Company,
OHI and OTC are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the Company,
OHI and OTC, in each case except as described in the Prospectus.
(v) The Company, OHI and OTC own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented
7
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; neither OHI nor OTC 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
affect on the Company, OHI and OTC, taken as a whole.
(w) Except as described in the Prospectus, no material labor dispute
with the employees of the Company, OHI or OTC exists, or, to the knowledge
of the Company, is imminent.
(x) The Company, OHI and OTC are insured by the insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company, OHI nor OTC has been refused any
insurance coverage sought or applied for; and neither the Company, OHI nor
OTC has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
Company, OHI and OTC, taken as a whole, except as described in the
Prospectus.
(y) The Company, OHI and OTC possess all certificates, authorizations
and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective business in all material
respects, and neither the Company, OHI nor OTC 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, OHI and OTC, taken as a whole,
except as described the Prospectus.
(z) The Company, OHI and OTC 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)
8
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.
2. Representations and Warranties of UPC. UPC 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 threatened by the
Commission.
(b) With respect only to the statements and information regarding UPC
under the captions (i) "Prospectus Summary--Background to the Offering,"
(ii) "The Acquisition" and (iii) "Agreements with Union Pacific
Corporation", or otherwise contained in the Prospectus and pertaining to
UPC's ownership of the capital stock of OHI (such statements and
information collectively, the "UPC Information"), (A) 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, (B) the
Registration Statement and the Prospectus 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 (C) 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 UPC in writing by such Underwriter through you
expressly for use therein.
(c) Each of OHI and OTC has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority
9
to own its property and to conduct its business as described in the
Prospectus.
(d) This Agreement has been duly authorized, executed and delivered by
UPC.
(e) (i) The outstanding shares of common stock of OTC have been duly
authorized and are validly issued, fully paid and non-assessable; and OHI
has good and valid title to the stock of OTC, free and clear of all liens,
encumbrances, equities or claims, and (ii) the outstanding shares of common
stock of OHI have been duly authorized and are validly issued, fully paid
and non-assessable; and UPC has good and valid title to the stock of OHI,
free and clear of all liens, encumbrances, equities or claims.
(f) The Intercompany Agreements conform to their description
contained in the Prospectus and have been duly authorized by UPC, and when
duly executed and delivered by it, each will be a legal, valid and binding
agreement of UPC, enforceable against it in accordances with its respective
terms.
(g) The execution and delivery by UPC of, and the performance by UPC
of its obligations under, this Agreement and the Intercompany Agreements
will not contravene any provision of applicable law or the articles of
incorporation or by-laws of UPC or any agreement or other instrument
binding upon UPC or any of its subsidiaries (excluding OHI and OTC) that is
material to UPC and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over UPC or any of its subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by UPC of its obligations under this
Agreement or pursuant to the Intercompany Agreements or in connection with
the Acquisition, 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.
(h) There are no legal or governmental proceedings pending or
threatened to which UPC or any of its subsidiaries (excluding OHI and OTC)
is a party or to which any of the properties of UPC or any of its
subsidiaries (excluding OHI and OTC) 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 to
which UPC is subject or by which UPC is bound that
10
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.
(i) There are no contracts, agreements or understandings between UPC
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 or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(j) UPC has full power and authority to transfer the stock of OHI to
the Company in connection with the Acquisition, and the transfer of such
stock has been duly authorized by all necessary corporate and stockholder
action on the part of UPC, and upon the closing of the Acquisition, UPC
will transfer all of the capital stock of OHI to the Company free and clear
of all liens, encumbrances, equities or claims on the capital stock of OHI
or OTC.
3. 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 names at U.S.$_____/1/ a share ("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 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 5 hereof
- ---------------
/1/ Offering price less underwriting fee, management fee and selling
concession.
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solely for the purpose of covering over-allotments made in connection with the
offering of the U.S. 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 Underwriter
bears to the total number of U.S. Firm Shares.
Each of the Company and UPC 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, except with respect to employee stock option plans in effect as
of the date of this Agreement, (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, 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 the Shares to be sold hereunder.
4. 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.
5. Payment and Delivery. Payment for the Firm Shares shall be made
to the Company in Federal or other funds immediately available against delivery
of such Firm Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on
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____________, 1998,/2/ or at such other time on the same or such other date, not
later than _________, 1998,/3/ 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 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 3
or at such other time on the same or on such other date, in any event not later
than _______, 1998,/4/ 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.
6. 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, if not already
effective, shall have become effective not later than 5 p.m. (New York City
time) on the date hereof.
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,
- ---------------
/2/ Date 3 business days or, in the event the offering is priced after 4:30
p.m. Eastern Time, 4 business days after date of Underwriting Agreement.
/3/ Date 5 business days after the date inserted in accordance with note 2
above.
/4/ Date 10 business days after the expiration of the greenshoe option.
13
financial or otherwise, or in the earnings, business or operations of (x)
the Company, or (y) OHI and OTC and its subsidiaries, taken as a whole, in
each case 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:
(i) certificates, dated the Closing Date and signed by (x) an
executive officer of the Company,(y) an executive officer of OHI and
(z) an executive officer of OTC, in each case to the effect set forth
in Section 6(a) above and to the effect that the representations and
warranties of the Company, OHI and OTC contained in this Agreement are
true and correct as of the Closing Date and that the Company, OHI and
OTC 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.
(ii) a certificate, dated the Closing Date and signed by an
executive officer of UPC to the effect that the representations and
warranties of the UPC contained in this Agreement are true and correct
as of the Closing Date and that UPC has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officers signing and delivering such certificates may each rely
upon the best of his or her knowledge after reasonable investigation.
(c) The Underwriters shall have received on the Closing Date an
opinion of Hunton & Williams, outside counsel for the Company, OHI and OTC,
dated the Closing Date, 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 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;
14
(ii) each of OHI and OTC is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
(iii) the outstanding shares of common stock of OTC have been
duly authorized and are validly issued, fully paid and non-assessable;
[OHI has good and valid title to the stock of OTC, free and clear of
all liens, encumbrances, equities or claims;]
(iv) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(v) 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;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and OTC;
(vii) the execution and delivery by each of the Company, OHI and
OTC of, and the performance by each of the Company, OHI and OTC of its
obligations under, this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company, OHI or OTC or, to such counsel's knowledge, any agreement or
other instrument binding upon the Company, OHI or OTC that is material
to the Company, OHI and OTC and its subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company, OHI or OTC, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Company, OHI or OTC of its
obligations under this Agreement, except (A) such as have been
obtained under the Securities Act, and (B) such as may be required by
the securities or Blue Sky laws of the various states and foreign
jurisdictions in connection with the offer and sale of the Shares by
the U.S. Underwriters and International Underwriters;
15
(viii) the statements (A) in the Prospectus under the captions
"Agreements with Union Pacific Corporation", "Description of Capital
Stock" and "Underwriters", to the extent such section summarizes the
terms of this Agreement, and (B) in the Registration Statement in
Items 14 and 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(ix) 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;
(x) each of the Intercompany Agreements has been duly authorized
by the Company, OHI and OTC, and when executed and delivered by them,
each will be a legal, valid and binding agreement of the Company, OHI
and OTC enforceable against them in accordances with its respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles; and
(xi) such counsel (A) 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, (B) has no reason
to believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not
express any belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) has no reason to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the
16
Prospectus contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(xii) The Registration Statement became effective under the
Securities Act on [ ], 1998, and thereupon the offering of the
Shares as contemplated by the Prospectus became registered under the
Securities Act; to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act.
(d) The Underwriters shall have received on the Closing Date an
opinion of the Senior Vice President and General Counsel or Assistant
General Counsel of UPC or other counsel satisfactory to the U.S.
Representatives, dated the Closing Date, to the effect that:
(i) UPC has good and valid title to the stock of OHI, free and
clear of all liens, encumbrances, equities or claims;
(ii) this Agreement has been duly authorized, executed and
delivered by UPC and OHI;
(iii) the execution and delivery by UPC of, and the performance
by UPC of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of UPC or, to such counsel's knowledge, any agreement or other
instrument binding upon UPC or any of its subsidiaries (other than OHI
or OTC or any of its subsidiaries) that is material to UPC and its
subsidiaries, taken as a whole, or, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over UPC or any of its subsidiaries (other than
OHI or OTC or any of its subsidiaries), and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by UPC of its
obligations under this Agreement, except (A) such as have been
obtained under the Securities Act, and (B) such as may be required by
the securities or Blue Sky laws
17
of the various states in connection with the offer and sale of the
Shares by the U.S. Underwriters;
(iv) the statements in the Prospectus under the caption
"Agreements with Union Pacific Corporation" insofar as such statements
constitute summaries of the documents referred to therein, fairly
present the information called for with respect to such documents and
fairly summarize the matters referred to therein;
(v) each of the Intercompany Agreements has been duly
authorized, executed and delivered by UPC and is a legal, valid and
binding agreement of UPC enforceable against it in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles;
(vi) pursuant to the Stock Purchase and Indemnification
Agreement, upon the closing of the Acquisition, UPC will transfer all
of the capital stock of OHI to the Company free and clear of all
liens, encumbrances, equities or claims on the capital stock of OHI or
OTC arising through UPC; and
(vii) (A) such counsel is of the opinion that the Registration
Statement, as of its effective date, and the Prospectus, as of its
date and as of the date hereof, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) nothing has come to the attention of such
counsel in the course of his participation in the preparation of the
Registration Statement and Prospectus that caused him to believe that
the Registration Statement, as of its effective date, or the
Prospectus, as of its date and as of the date hereof, contain or
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) The Underwriters shall have received on the Closing Date an
opinion of the General Counsel of OTC or other counsel satisfactory to the
U.S. Representatives, dated the Closing Date, to the effect that:
18
(i) the statements in the Prospectus under the captions "Risk
Factors--Disputes with Labor Organizations" (second and third
paragraphs only) and "Business--Employees" (second paragraph only),
"Risk Factors--Possible Adverse Effect of Governmental Policy and
Regulations" (second paragraph only) and "Business--Environmental
Regulation," insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein; and
(ii) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company, OHI or OTC or any of its subsidiaries is a party or to which
any of the properties of the Company, OHI or OTC 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, 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.
(f) The Underwriters shall have received on the Closing Date an
opinion of Richards Layton & Finger, Delaware counsel to the Company, dated
the Closing Date, to the effect that:
(i) the outstanding shares of common stock of OHI have been
duly authorized and are validly issued, fully paid and non-assessable;
(ii) OHI has good and valid title to the stock of OTC, free and
clear of all liens, encumbrances, equities or claims;
(iii) this Agreement has been duly authorized, executed and
delivered by OHI; and
(iv) the execution and delivery by OHI of, and the performance
by OHI of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of OHI.
19
(g) The Underwriters shall have received on the Closing Date an
opinion of Cravath, Swaine & Moore, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 6(c)(viii) (but
only as to the statements in the Prospectus under "Description of Capital
Stock" and "Underwriters") and 6(c)(xi) above.
With respect to the opinions covering matters stated in Section
6(c)(xi) above, Hunton & Williams, UPC counsel and Cravath, Swaine & Moore
may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified.
The opinion of (i) Hunton & Williams described in Section 6(c) above,
(ii) the Senior Vice President and General Counsel or Assistant General
Counsel of UPC or other counsel satisfactory to the U.S. Representatives
described in Section 6(d) above and (iii) the opinion of the General
Counsel of OTC or other counsel satisfactory to the U.S. Representatives
described in Section 6(e) above shall be rendered to the Underwriters at
the request of the Company, UPC or OTC, as the case may be and shall so
state therein.
(g) 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 Deloitte & Touche LLP, 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 letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain 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.
(i) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder
20
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 of
the Additional Shares and other matters related to the issuance of the
Additional Shares.
7. Covenants of the Company and UPC. In further consideration of the
agreements of the Underwriters herein contained, the Company and, with respect
to paragraph (f) below, UPC, covenant with each Underwriter as follows:
(a) To furnish to you, without charge, five 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, as soon as practicable on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 7(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
21
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.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(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 ending September 30, 1999 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 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 hereinabove
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 7(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 Nasdaq
22
National Market, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, 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, (ix) all expenses similar to those set forth in (i) through
(viii) of this Section 7 in connection with any offer and sale of the
Shares outside of the United States, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside of the United States, (x) 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. It is understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution," and the last
paragraph of Section 10 below, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
8. Indemnity and Contribution. (a) (i) 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
23
statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) UPC 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, but, in each case, only insofar as such statement or
omission relates to the UPC Information.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, UPC and each person, if any, who controls the Company or
UPC 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 and UPC to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company or UPC 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.
(d) 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 8(a), 8(b) or 8(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party may, and
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
24
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
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. 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.
(e) To the extent the indemnification provided for in Section 8(a),
8(b) or 8(c) 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, 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 indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 8(e)(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 8(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties 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 and UPC on the one hand and the Underwriters on the
other hand in connection with the
25
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 and UPC 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 and UPC 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 8 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Company, UPC and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 8(e). 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 8, 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 guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 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.
(g) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company and UPC contained in this Agreement shall remain operative and in
26
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, UPC, any of their
officers or directors or any person controlling the Company or UPC and (iii)
acceptance of and payment for any of the Shares.
9. 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.
10. 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 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
27
pursuant to this Section 10 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 or UPC to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or UPC shall be unable to perform its obligations
under this Agreement, other than due to a default on the part of any Underwriter
or the exercise of the Underwriters' right of termination under Section 9, the
Company and UPC agree, jointly and severally, to reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
11. 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.
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12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. 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,
OVERNITE CORPORATION
By:_________________________
Name:
Title:
OVERNITE HOLDING, INC.
By:_________________________
Name:
Title:
29
OVERNITE TRANSPORTATION COMPANY
By:_________________________
Name:
Title:
UNION PACIFIC CORPORATION
By:_______________________
Name:
Title:
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: Morgan Stanley & Co. Incorporated
By:___________________________
Name:
Title:
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
MERRILL LYNCH INTERNATIONAL
By: Morgan Stanley & Co. International Limited
By:___________________________
Name:
Title:
30
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Morgan Stanley & U.S. Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Merrill Lynch, Pierce, Fenner & Smith
Incorporated _______________
Total U.S. Firm Shares.............. ===============
31
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Donaldson, Lufkin & Jenrette International
Merrill Lynch International _______________
Total International Firm Shares........ ===============
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EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 1998
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Donaldson, Lufkin & Jenrette International
Merrill Lynch International
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 Overnite Corporation, a Virginia corporation (the "COMPANY") providing for
the public offering (the "PUBLIC OFFERING") by the several Underwriters,
including Morgan Stanley and MSIL (the "UNDERWRITERS") of 33,600,000 shares (the
"SHARES") of the Common Stock, par value $.01 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 Prospectus (as
defined in the Underwriting Agreement), except with respect to employee stock
option plans in effect as of the date of the Underwriting Agreement, (1) offer,
pledge, sell, contract to sell, sell any option or
33
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 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)
34