EXHIBIT 1.1
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AMERICAN COMMERCIAL LINES INC.
(a Delaware corporation)
Shares of Common Stock
PURCHASE AGREEMENT
Dated: , 2005
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AMERICAN COMMERCIAL LINES INC.
(a Delaware corporation)
Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
, 2005
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Securities LLC
as Representatives of the several Underwriters
X/X XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
American Commercial Lines Inc., a Delaware corporation (the "Company"),
and GVI Holdings, Inc., a Delaware corporation, (the "Selling Shareholder"),
confirm their respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxxxx Xxxxx and UBS Securities LLC are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Company and the Selling Shareholder, acting severally and not
jointly, and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of shares of Common Stock, par value $0.01 per share,
of the Company ("Common Stock") set forth in Schedules A and B hereto and (ii)
the grant by the Selling Shareholder to the Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of additional shares of Common Stock to cover overallotments,
if any. The aforesaid shares of Common Stock (the "Initial Securities")
to be purchased by the Underwriters and all or any part of the shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities".
The Company and the Selling Shareholder understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company, the Selling Shareholder and the Underwriters agree that up
to shares of the Securities to be purchased by the Underwriters (the
"Reserved Securities") shall be reserved for sale by the Underwriters to certain
eligible employees and persons having business relationships with the Company
(the "Invitees"), as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. and all other applicable laws, rules and regulations. To the
extent that such
Reserved Securities are not orally confirmed for purchase by Invitees by the end
of the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering
contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-126696), including
the related preliminary prospectus or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits and any schedules thereto, at the time it
became effective, and including the Rule 430A Information, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities is herein called the "Prospectus." For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an 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, and the
Prospectus, any preliminary prospectus and any supplement thereto or
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prospectus wrapper prepared in connection therewith, at their
respective times of issuance and at the Closing Time, complied and will
comply in all material respects with any applicable laws or regulations
of foreign jurisdictions in which the Prospectus and such preliminary
prospectus, as amended or supplemented, if applicable, are distributed
in connection with the offer and sale of Reserved Securities. Neither
the Prospectus nor any amendments or supplements thereto (including any
prospectus wrapper), at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
the Representatives or the Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto).
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods covered thereby. The supporting
schedules included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included
in the Prospectus under the captions "Prospectus Summary - Summary
Historical Consolidated Financial Information," "Selected Consolidated
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or
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in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly incorporated or organized and is validly
existing as a corporation or limited liability company, as applicable,
in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate or limited liability
company power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation or limited liability company to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
or membership interests of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any material security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock or
membership interests of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
The only subsidiaries of the Company are (a) the subsidiaries listed on
Exhibit 21 to the Registration Statement and (b) certain other
subsidiaries which, considered in the aggregate as a single Subsidiary,
do not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock, including the Securities to be purchased by
the Underwriters from the Selling Shareholder, have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock, including the
Securities to be purchased by the Underwriters from the Selling
Shareholder, was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
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(ix) Authorization and Description of Securities. The
Securities to be purchased by the Underwriters from the Company have
been duly authorized for issuance and sale to the Underwriters pursuant
to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms, in all material respects, to all statements
relating thereto contained in the Prospectus and such description
conforms, in all material respects, to the rights set forth in the
instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities by the Company and
the use of the proceeds from the sale of the Securities by the Company
as described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and to the knowledge of the Company, there
is not any existing or imminent labor disturbance by the employees of
any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, would result in a
Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the
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performance by the Company of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which
have not been so described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate 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, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except (i) such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws and (ii) such as have
been obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered.
(xvi) Absence of Manipulation. Neither the Company nor any
controlled affiliate of the Company has taken, nor will the Company or
any such affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate,
result in a Material Adverse Effect; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which,
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singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, have a Material Adverse Effect; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xix) Investment Company Act. The Company is not required, and
upon the issuance and sale of the Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be required, to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products, asbestos-containing materials or mold
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxi) Registration Rights. Except for the registration rights
of the Selling Shareholder described in the Prospectus, there are no
persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxii) Insurance. The Company and each of its Subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks as is prudent and customary for the conduct of their respective
businesses and the value of their respective properties.
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(xxiii) Taxes. The Company and each of its Subsidiaries has
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due
thereon, except such as are being contested in good faith by
appropriate proceedings, and except as would not have a Material
Adverse Effect, and no tax deficiency has been determined adversely to
the Company or any of its Subsidiaries which has had, nor does the
Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its Subsidiaries, might have, a
Material Adverse Effect.
(xxiv) Controls. The Company and each of its Subsidiaries (A)
make and keep accurate books and records and (B) maintain internal
accounting controls which provide reasonable assurance that (i)
transactions are executed in accordance with management's
authorization, (ii) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (iii) access to its assets is permitted only in
accordance with management's authorization and (iv) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(xxv) Xxxxxxxx-Xxxxx. The Company and each of its Subsidiaries
is in compliance, in all material respects, with the provisions of the
Xxxxxxxx-Xxxxx Act of 2002 to the extent currently applicable to it.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to each Underwriter as of the date
hereof, as of the Closing Time, and, if the Selling Shareholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each Underwriter, as follows:
(i) Accurate Disclosure. The Selling Shareholder has reviewed
and is familiar with the Registration Statement and the Prospectus and
neither the Prospectus nor any amendments or supplements thereto
(including any prospectus wrapper) includes 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 insofar as the statements relate
to written information about the Selling Shareholder provided by the
Selling Shareholder to the Company for use in the Prospectus; the
Selling Shareholder is not prompted to sell the Securities to be sold
by the Selling Shareholder hereunder by any information concerning the
Company or any subsidiary of the Company which is not set forth in the
Prospectus.
(ii) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by or on behalf of the Selling
Shareholder.
(iii) Authorization of Power of Attorney and Custody
Agreement. The Power of Attorney and Custody Agreement, in the form
heretofore furnished to the Representatives (the "Power of Attorney and
Custody Agreement"), has been duly authorized, executed and delivered
by the Selling Shareholder and is the valid and binding agreement of
the Selling Shareholder.
(iv) Noncontravention. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale
and delivery of the Securities to be sold by the Selling Shareholder
and the consummation of the transactions contemplated herein and
compliance by the Selling Shareholder with its obligations hereunder do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by the
Selling Shareholder or any property or assets of the Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or
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credit agreement, note, license, lease or other agreement or instrument
to which the Selling Shareholder is a party or by which the Selling
Shareholder may be bound, or to which any of the property or assets of
the Selling Shareholder is subject, nor will such action result in any
violation of the provisions of the charter or by-laws or other
organizational instrument of the Selling Shareholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Selling Shareholder
or any of its properties.
(v) Valid Title. The Selling Shareholder has, and at the
Closing Time or the relevant Date of Delivery, as the case may be, will
have, valid title to the Securities to be sold by the Selling
Shareholder free and clear of all security interests, claims, liens,
equities or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Power of Attorney and Custody Agreement and to sell,
transfer and deliver the Securities to be sold by the Selling
Shareholder.
(vi) Delivery of Securities. Upon the Underwriters' acquiring
possession of the Securities to be sold by the Selling Shareholder and
paying the purchase price therefor pursuant to this Agreement, the
Underwriters (assuming that no such Underwriter has notice of any
"adverse claim", within the meaning of Section 8-105 of the New York
Uniform Commercial Code, to such Securities) will acquire their
respective interests in such Securities (including, without limitation,
all rights that the Selling Shareholder had or has the power to
transfer in such Securities) free and clear of any adverse claim within
the meaning of Section 8-102 of the New York Uniform Commercial Code.
(vii) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or would be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(viii) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by the Selling
Shareholder of its obligations hereunder or in the Power of Attorney
and Custody Agreement, or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except (i) such as may have previously
been made or obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws and (ii) such as have
been obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered.
(ix) No Association with NASD. Neither the Selling Shareholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or is a person associated with (within the meaning of
Article I (dd) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of
Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholder as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be
9
deemed a representation and warranty by the Selling Shareholder to the
Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and the Selling Shareholder, severally and not jointly, agree
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company and the Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial Securities set forth in Schedule B opposite the name of
the Company or the Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholder hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering overallotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Company and the Selling Shareholder setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
& Xxxxxxx LLP, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as shall be agreed upon by the Representatives and the
Company and the Selling Shareholder, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
and the Selling Shareholder (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Shareholder, on each Date of Delivery as
specified in the notice from the Representatives to the Company and the Selling
Shareholder.
10
Payment shall be made to the Company and the Selling Shareholder by
wire transfer of immediately available funds to bank account(s) designated by
the Company and the Custodian pursuant to the Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx and UBS Securities LLC, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement
or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration
11
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") as are necessary in order to
make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
12
(i) Listing. The Company will use its best efforts to effect the
listing of the Common Stock (including the Securities) on the Nasdaq National
Market.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of the Representatives, (i) directly or indirectly, 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 or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or 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 Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee
director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the rules and regulations
of the Commission thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted and the Company's
obligations under this Section 3(l) will extend only to such persons, subject to
applicable law. At the request of the Underwriters, the Company will direct the
transfer agent to place a stop transfer restriction upon such securities for
such period of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
SECTION 4. Payment of Expenses.
(a) Expenses. Subject to Sections 4(b), the Company will pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vii) the
13
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the Securities, including without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged by the Representatives and consented to
by the Company in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show and (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities and (xi) the fees and
expenses incurred in connection with the listing of the Securities on the Nasdaq
National Market and (xii ) any costs and expenses of the Underwriters, including
the reasonable fees and disbursements of counsel for the Underwriters incurred
in connection with matters related to the Reserved Securities which are
designated by the Company for sale to Invitees. It is understood, however, that
except as expressly provided elsewhere in this Agreement, the Underwriters will
pay all of their own expenses, including fees of their counsel.
(b) Expenses of the Selling Shareholder. Notwithstanding Section 4(a)
above and subject to Section 4(c), the Selling Shareholder will pay all expenses
incident to the performance of its obligations under, and the consummation of
the transactions contemplated by this Agreement, including (i) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the Underwriters, and their transfer between the Underwriters
pursuant to an agreement between such Underwriters, and (ii) the fees and
disbursements of its counsel and other advisors.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
(d) Allocation of Expenses. If the Company is required to make any
payment to the Underwriters under Section 4(c) in connection with any
termination of this Agreement pursuant to Section 5 or 11(a) relating to the
Selling Shareholder under circumstances where there was no basis for the
Representatives to terminate this Agreement pursuant to Section 5 or 11(a)
relating to the Company, the Selling Shareholder shall reimburse the Company on
demand for all amounts so paid.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholder
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of the Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
14
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of (i) Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto, and (ii) the General
Counsel for the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters to the effect set forth in Exhibit B
hereto.
(c) Opinion of Counsel for the Selling Shareholder. At Closing Time,
the Representatives shall have received the favorable opinion, dated as of
Closing Time, of , counsel for the Selling Shareholder, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit C hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i), (ii), (v), (vi) (solely as
to preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (viii) through (x), inclusive, (xi), (xiii)
(solely as to the information in the Prospectus under "Description of Capital
Stock--Common Stock") and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the
federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Effect, and the Representatives
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no Material
Adverse Effect, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) 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, to their knowledge, contemplated by the
Commission.
(f) Certificate of Selling Shareholder. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of the Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of the Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) the Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in
15
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the Nasdaq National Market, subject only to
official notice of issuance.
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
(i) Exhibit D hereto signed by the persons listed on Schedule D hereto and (ii)
Exhibit E hereto signed by HY I Investments, L.L.C.
(l) Maintenance of Rating. Since the execution of this Agreement, there
shall not have been any decrease in the rating of any of the Company's
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 0000 Xxx) or any notice given to
the Company of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
(m) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Shareholder contained herein and the statements
in any certificates furnished by the Company, any subsidiary of the Company and
the Selling Shareholder hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholder. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of the Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
(i) Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b)(i) hereof, and (ii) the General
Counsel for the Company, in form and substance reasonably satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(ii) hereof.
(iv) Opinion of Counsel for the Selling Shareholder. The
favorable opinion of , counsel for the Selling Shareholder, in
form and substance reasonably satisfactory to counsel for
16
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion
of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholder in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company and the Selling
Shareholder at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company. The Company agrees
to indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling
agents and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
17
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided,
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives or by the Selling Shareholder expressly
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that with respect to
any untrue statement or omission from any preliminary prospectus, the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, liability, claim,
damage or expense purchased Securities, or any person controlling such
Underwriter, to the extent that a prospectus relating to such Securities was
required to be delivered by such Underwriter under the 1933 Act in connection
with such purchase and any such loss, liability, claim, damage or expense of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sales of the Securities
to such person, a copy of the Prospectus (as then amended or supplemented) which
corrected such untrue statement or omission.
(b) Indemnification of Underwriters by the Selling Shareholders. The
Selling Shareholder agrees to indemnify and hold harmless each Underwriter, its
Affiliates, its selling agents and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by the Selling Shareholder expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); provided, however, that
with respect to any untrue statement or omission from any preliminary
prospectus, the indemnity agreement contained in this Section 6(b) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, liability, claim, damage or expense purchased Securities, or any person
controlling such Underwriter, to the extent that a prospectus relating to such
Securities was required to be delivered by such Underwriter under the 1933 Act
in connection with such purchase and any such loss, liability, claim, damage or
expense of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sales of
the Securities to such person, a copy of the Prospectus (as then amended or
supplemented) which corrected such untrue statement or omission. The liability
under this subsection (b) of the Selling Shareholder shall be limited to an
amount equal to the gross proceeds to the Selling Shareholder from the sale of
Securities sold by the Selling Shareholder under this Agreement. The
18
Company and the Underwriter acknowledge that the statements set forth under the
caption "Principal and Selling Shareholder" relating to the Selling Shareholder
in any preliminary prospectus, the Prospectus (as amended) and the Registration
Statement (as amended or supplemented) constitute the only information furnished
in writing by or behalf of the Selling Shareholder for inclusion therein (the
"Selling Shareholder Information").
(c) Indemnification of Company, Directors and Officers and Selling
Shareholder. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling
Shareholder and each person, if any, who controls the Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of indemnified pursuant to Section 6(c) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) or settlement of any claim in connection with any violation
referred to in Section 6(f) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into
19
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(f) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees to indemnify and
hold harmless the Underwriters, their Affiliates and selling agents and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any
and all loss, liability, claim, damage and expense (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending, investigating or settling any such action or claim), as incurred, (i)
arising out of the violation of any applicable laws or regulations of foreign
jurisdictions where Reserved Securities have been offered; (ii) arising out of
any untrue statement or alleged untrue statement of a material fact contained in
any prospectus wrapper or other material prepared by or with the consent of the
Company for distribution to Invitees in connection with the offering of the
Reserved Securities 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; (iii) caused by the failure of any Invitee to
pay for and accept delivery of Reserved Securities which have been orally
confirmed for purchase by any Invitee by the end of the first business day after
the date of the Agreement; or (iv) related to, or arising out of or in
connection with, the offering of the Reserved Securities.
(g) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement between the Company and the Selling
Shareholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
subsection (a), (b) or (c) of Section 6 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party under such paragraph shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling Shareholder
on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions, or in connection with any violation of the nature
referred to in Section 6(f) hereof, which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholder and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholder on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholder or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 6(f) hereof.
20
The Company, the Selling Shareholder and the Underwriters agree that it
would not be just and 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 which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (A) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission and (B) the Selling
Shareholder shall not be required to contribute in excess of the amount equal to
the gross proceeds to the Selling Shareholder from the sale of the Securities by
the Selling Shareholder under this Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or the Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company or the Selling Shareholder,
as the case may be. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholder submitted pursuant hereto, shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors, any person controlling the Company
or any person controlling the Selling Shareholder and (ii) delivery of and
payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholder, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any Material Adverse Effect, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
21
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the Nasdaq National Market or in the New York Stock Exchange has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (v) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided, further, that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Shareholder to sell the relevant Option
Securities, as the case may be, either the (i) Representatives or (ii) the
Company and the Selling Shareholder shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements as based on
the advice of counsel to such party. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
22
SECTION 11. Default by the Selling Shareholder or the Company. (a) If
the Selling Shareholder shall fail at Closing Time or at a Date of Delivery to
sell and deliver the number of Securities which the Selling Shareholder are
obligated to sell hereunder, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the
Selling Shareholder, either (i) terminate this Agreement without any liability
on the fault of any non-defaulting party except that the provisions of Sections
1, 4, 6, 7 and 8 shall remain in full force and effect or (ii) elect to purchase
the Securities which the Company has agreed to sell hereunder. No action taken
pursuant to this Section 11 shall relieve the Selling Shareholder so defaulting
from liability, if any, in respect of such default.
In the event of a default by the Selling Shareholder as referred to in
this Section 11, each of the Representatives and the Company shall have the
right to postpone Closing Time or Date of Delivery for a period not exceeding
seven days in order to effect any required change in the Registration Statement
or Prospectus or in any other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of
Delivery to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any nondefaulting party; provided, however, that the provisions of Sections
1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant
to this Section 11 shall relieve the Company from liability, if any, in respect
of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this
Agreement, from the commencement of discussions with respect to the transactions
contemplated hereby, each of the Company and the Selling Shareholder (and each
employee, representative or other agent of each of the Company and the Selling
Shareholder) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure (as such terms are used in Sections
6011, 6111 and 6112 of the U.S. Code and the Treasury Regulations promulgated
thereunder) of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided
relating to such tax treatment and tax structure.
SECTION 13. Miscellaneous. (a) The Company and the Selling Shareholder
acknowledge and agree that (i) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the public offering price of
the Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Company and the Selling Shareholder, on the
one hand, and the several Underwriters, on the other hand, (ii) in connection
with the offering contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is
not the agent or fiduciary of the Company, the Selling Shareholder, or their
respective stockholders, creditors, employees or any other party, (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company or the Selling Shareholder with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company or the Selling
Shareholder on other matters) and no Underwriter has any obligation to the
Company or the Selling Shareholder with respect to the offering contemplated
hereby except the obligations expressly set forth in this Agreement, (iv) the
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company or the
Selling Shareholder, and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and each of the Company and the Selling Shareholder has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
SECTION 14. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 4 World
00
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Office of the General
Counsel; notices to the Company shall be directed to it at 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx 00000, attention of General Counsel; and notices
to the Selling Shareholder shall be directed to , attention of .
SECTION 15. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholder
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Shareholder and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Selling Shareholder
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholder in accordance with its terms.
Very truly yours,
AMERICAN COMMERCIAL LINES INC.
By
-----------------------------------
Name:
Title:
GVI HOLDINGS, INC.
By
-----------------------------------
Name:
Title:
As Attorney-in-Fact acting on
behalf of the Selling Shareholder
named in Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
UBS Securities LLC
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
---------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
25
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated......................
UBS Securities LLC............................
Credit Suisse First Boston LLC................
Deutsche Bank Securities Inc..................
------------------
Total................................
==================
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ------------------------
AMERICAN COMMERCIAL LINES INC.
GVI HOLDINGS, INC.
Total.........................
Sch B-1
SCHEDULE C
AMERICAN COMMERCIAL LINES INC.
Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the Securities, determined as
provided in said Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $ , being an amount equal to the initial public
offering price set forth above less $ per share; provided, that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch C-1
SCHEDULE D
1. Xxxxxxxxxxx Xxxxx
2. Xxxx Xxxxxxx
3. Xxxxxx Xxxxx
4. Xxxx Xxxxxxx
5. Xxxx Xxxxxxxx
6. Xxxx Xxxxxx
7. Xxxxxxx Xxxxx
8. Xxxx Xxxxxxxx
9. Xxxx Xxxxxx
10. Xxxxx Xxxxxx
11. Xxxxxxx Xxxxxxx
12. Xxxxxx Xxxxxx
13. X. Xxxxxx Price
14. Xxxxxxx Xxxxxxxx
15. Xxxxxxx Xxxxxxx
16. R. Xxxxxxxxxxx Xxxxx
17. W. N. Xxxxxxxx
18. Xxxxxxx Xxxxxxx
00. Xxxxxx Xxxx
00. Great American Management and Investment, Inc.
21. GVI Holdings, Inc.
22. SZ Investments, L.L.C.
Sch D-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(i)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Purchase
Agreement.
(iii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in the states identified in such opinion.
(iv) The Company has authorized capital stock as set forth in the
Prospectus and the issuance of the outstanding shares of capital stock of the
Company was not subject to preemptive rights under the terms of the Delaware
General Corporation Law (the "DGCL") or the Company's Certificate of
Incorporation.
(v) The shares of Common Stock outstanding prior to the issuance and
sale of the Initial Securities to be sold by the Company pursuant to the
Purchase Agreement (including the Securities to be sold by the Selling
Stockholder pursuant to the
Purchase Agreement) have been duly authorized and
validly issued and are fully paid and non-assessable.
(vi) The Initial Securities to be sold by the Company pursuant to the
Purchase Agreement have been duly authorized for issuance and sale to the
Underwriters pursuant to the
Purchase Agreement and, when issued and delivered
by the Company pursuant to the
Purchase Agreement against payment of the
consideration set forth in the
Purchase Agreement, will be validly issued and
fully paid and non-assessable and no holder of the Initial Securities is or will
be subject to personal liability pursuant to the DGCL by reason of being such a
holder.
(vii) The issuance of the Initial Securities to be sold by the Company
pursuant to the
Purchase Agreement is not subject to preemptive rights under the
terms of the DGCL or the Company's Certificate of Incorporation.
(viii) Each of American Commercial Lines LLC, Louisiana Dock Company
LLC, Jeffboat LLC, American Commercial Terminals LLC, American Commercial Barge
Line LLC, Vessel Leasing LLC, and American Commercial Lines International LLC
(the "Specified Subsidiaries") has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware. Each Specified Subsidiary has the requisite limited liability company
power and authority to own, lease and operate its respective properties and to
conduct its business as described in the Prospectus, and each Specified
Subsidiary is duly qualified to transact business as a foreign limited liability
company and is in good standing in the states identified in such opinion.
(ix) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(x) The staff of the Division of Corporation Finance of the Commission
has advised us that the Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and
A-1
within the time period required by Rule 424(b); and, to our knowledge, no stop
order suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xi) The Registration Statement, including any Rule 462(b) Registration
Statement, and the Rule 430A Information, the Prospectus, and each amendment or
supplement to the Registration Statement and Prospectus, as of their respective
effective or issue dates (other than the financial statements and schedules and
financial data included therein or omitted therefrom, as to which we express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(xii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable requirements of the DGCL,
with any applicable requirements of the Company's Certificate of Incorporation
and by-laws and with the requirements of the Nasdaq National Market.
(xiii) Statements in the Prospectus under "Description of Capital
Stock--Common Stock," "Description of Capital Stock--Preferred Stock" and
"Description of Capital Stock - Indemnification and Limitation of Director and
Officer Liability" and in the Registration Statement under Item 14, to the
extent that such statements constitute matters of law, summaries of legal
matters, the Company's Certificate of Incorporation and by-laws, or legal
conclusions, have been reviewed by us and are correct summaries in all material
respects of the information required by Regulation S-K promulgated by the
Commission with respect to such matters.
(xiv) Statements in the Prospectus under "Material U.S. Federal Income
Tax Considerations for Non-U.S. Holders," to the extent such statements
constitute matters of law, summaries of legal matters or legal conclusions, have
been reviewed by us and are correct in all material respects.
(xv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any United States federal or
New York state court or governmental authority or agency (other than under the
1933 Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states, as to
which we express no opinion) is necessary or required in connection with the due
authorization, execution and delivery by the Company of the Purchase Agreement
or for the offering, issuance, sale or delivery of the Initial Securities by the
Company.
(xvi) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") by the Company
and compliance by the Company with its obligations under the Purchase Agreement
do not, whether with or without the giving of notice or lapse of time or both,
(a) constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(x) of the Purchase Agreement) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any contract filed (or incorporated by reference) as
an exhibit to the Registration Statement to which the Company or any Subsidiary
is a party or (b) violate (i) the Certificate of Incorporation or by-laws of the
Company or (ii) any United States federal or
New York state law, statute, rule
or regulation known to us.
A-2
(xvii) The Company is not required, and upon the issuance and sale by
the Company of the Initial Securities as contemplated in the Prospectus and the
application of the net proceeds therefrom as described in the Prospectus will
not be required, to register as an "investment company" under the 1940 Act.
In the course of the preparation of the Registration Statement and the
Prospectus, we have considered the information set forth therein in light of the
matters required to be set forth therein and we have participated in conferences
with representatives of the Underwriters and officers and representatives of the
Company, including its internal counsel and independent public accountants,
during the course of which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and have not made any independent check or verification thereof
(except as set forth in paragraphs (iv), (xiii) and (xiv) above), no facts have
come to our attention that cause us to believe that the Registration Statement
or any amendment thereto, including the Rule 430A Information, (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we express no belief), at the time such
Registration Statement or any such amendment became effective, contained an
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
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we express no belief), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials and the
order of the Bankruptcy Court in connection with the emergence of the Company's
subsidiaries from bankruptcy protection. Such opinion shall be limited to the
laws of the State of New York and the federal laws of the United States and the
DCGL. Such opinion shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
Such opinion may state that: to comply with certain Treasury
regulations, we inform you that (i) any U.S. federal tax advice contained herein
was written to support the promotion and marketing by others of shares of Common
Stock of the Company, (ii) any U.S. federal tax advice contained herein was not
intended or written to be used, and cannot be used, by any person for the
purpose of avoiding any U.S. federal tax penalties that may be imposed on such
person and (iii) each taxpayer should seek advice based on the taxpayer's
particular circumstances from an independent tax advisor.
A-3
Exhibit B
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
(i) The Company has issued and outstanding capital stock as set forth
in the Prospectus.
(ii) To my knowledge, the issuance of the outstanding shares of capital
stock of the Company was not in violation of any agreement to which the Company
was a party.
(iii) To my knowledge, the issuance of the Initial Securities to be
sold by the Company pursuant to the Purchase Agreement is not in violation of
any agreement to which the Company is a party.
(iv) Except as otherwise disclosed in the Prospectus all of the
membership interests of each Specified Subsidiary are owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
membership interests of any Specified Subsidiary was issued in violation of
preemptive rights under the terms of such Specified Subsidiary's limited
liability company agreement or other similar rights of any securityholder of
such Specified Subsidiary, or, to my knowledge, any agreement to which such
Specified Subsidiary is a party.
(v) To my knowledge, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which would reasonably be expected to result in a Material
Adverse Effect, or which would reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder, except as described in the Prospectus.
(vi) Statements in the Prospectus under "Business--Facilities,"
"Business--Government Regulation," "Business--Environmental Regulation,"
"Business--Occupational Health and Safety Matters" and "Business--Litigation,"
to the extent that such statements constitute matters of law, summaries of legal
matters, the Company's Certificate of Incorporation and by-laws or legal
proceedings, or legal conclusions, have been reviewed by me and are correct
summaries in all material respects.
(vii) To my knowledge, copies of all contracts and other documents
required by Regulation S-K promulgated by the Commission to be filed or
incorporated by reference as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or correctly described in all
material respects in the Registration Statement, as the case may be.
(viii) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") by the Company
and compliance by the Company with its obligations under the Purchase Agreement
do not, whether with or without the giving of notice or lapse of time or both,
(a) constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(x) of the Purchase Agreement) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to any contract filed (or incorporated by reference) as
an exhibit to the Registration Statement to which the Company or any subsidiary
is a party (except for such conflicts, breaches, defaults
B-1
or Repayment Events or liens, charges or encumbrances that would not have a
Material Adverse Effect), (b) violate (i) the charter or by-laws or limited
liability company agreement of any subsidiary, (ii) any federal or Indiana state
law, statute, rule or regulation known to me or (iii) any judgment, order, writ
or decree issued, to my knowledge, by any domestic or foreign governmental
agency, instrumentality or court having jurisdiction over the Company or any
subsidiary, or any of their respective properties, assets or operations, and
which, expressly by its terms, is binding upon the Company or any subsidiary.
(ix) To the best of my knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the 1933 Act, except as described in the Prospectus.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent she deems proper, on
certificates of responsible officers of the Company and public officials and the
order of the Bankruptcy Court in connection with the emergence of the Company's
subsidiaries from bankruptcy protection. Such opinion shall be limited to the
laws of the State of Indiana and the federal laws of the United States. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-2
Exhibit C
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by the Selling Shareholder and constitutes
the valid and binding agreement of the Selling Shareholder in accordance with
its terms.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling
Shareholder to deliver the Securities on behalf of the Selling Shareholder in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement
and the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Selling
Shareholder with its obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholder and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholder
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which the
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholder may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholder, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over the Selling Shareholder or any of its
properties.
(vi) The Selling Shareholder has valid title to, or a valid security
entitlement in respect of, the Securities to be sold by the Selling Shareholder
free and clear of all security interests, claims, liens, equities and other
encumbrances, and the Selling Shareholder has the legal right and power, and all
authorization and approval required by law, to enter into the Purchase Agreement
and the Power of Attorney and Custody Agreement of the Selling Shareholder and
to sell, transfer and deliver the Securities to be sold by the Selling
Shareholder.
(vii) Upon payment of the purchase price for the Securities to be sold
by the Selling Shareholder pursuant to this Agreement, delivery of such
Securities, as directed by the Underwriters, to Cede or such other nominee as
may be designated by DTC, registration of such Securities in the name of Cede or
such other nominee and the crediting of such Securities on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any "adverse claim", within the meaning of Section
8-105 of the UCC, to such Securities), (A) DTC shall be a
C-1
"protected purchaser", within the meaning of Section 8-303 of the UCC, of such
Securities and will acquire its interest in the Securities (including, without
limitation, all rights that the Selling Shareholder had or has the power to
transfer in such Securities) free and clear of any adverse claim within the
meaning of Section 8-102 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such
Securities and (C) no action (whether framed in conversion, replevin,
constructive trust, equitable lien, or other theory) based on any "adverse
claim", within the meaning of Section 8-102 of the UCC, to such Securities may
be asserted against the Underwriters with respect to such security entitlement;
for purposes of this representation, the Selling Shareholder may assume that
when such payment, delivery and crediting occur, (x) such Securities will have
been registered in the name of Cede or another nominee designated by DTC, in
each case on the Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation", within the meaning of Section 8-102 of the UCC, and (z)
appropriate entries to the accounts of the several Underwriters on the records
of DTC will have been made pursuant to the UCC.
C-2
Exhibit D
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS
PURSUANT TO SECTION 5(k)
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
UBS SECURITIES LLC,
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by
American Commercial Lines Inc.
Ladies and Gentlemen:
In connection with the proposed public offering by
American Commercial
Lines Inc., a corporation organized under the laws of Delaware (the "Company"),
the undersigned understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and UBS Securities LLC ("UBS")
propose to enter into a Purchase Agreement (the "Purchase Agreement") with the
Company and the Selling Shareholders providing for the public offering (the
"Public Offering") of shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"). In recognition of the benefit that such an offering
will confer upon the undersigned, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Purchase Agreement that, during
a period of 180 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx and UBS, directly
or indirectly, (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 for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file, or cause to be filed (in the undersigned's
capacity as a stockholder), any registration statement under the Securities Act
of 1933, as amended, except as contemplated by the Purchase Agreement, with
respect to any of the foregoing (collectively, the "Lock-Up Securities") or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Lock-Up Securities, whether any such swap or transaction is to be settled
by delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, and subject to the conditions below, the
undersigned may transfer the Lock-Up Securities without the prior written
consent of Xxxxxxx Xxxxx and UBS, provided that (1) Xxxxxxx Xxxxx and UBS shall
have received a duplicate form of this lock-up agreement from each donee,
trustee, distributee, or transferee, as the case may be, (2) any such transfer
shall not involve a disposition for value, (3) such transfers are not required
to be reported in any public report or filing with the Securities and Exchange
Commission or otherwise by any such party (other than a filing on a Form 5)
D-1
and (4) the undersigned does not otherwise voluntarily effect any such public
filing or report regarding such transfers:
(i) as a bona fide gift or gifts; or
(ii) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned; or
(iii) as a distribution to limited partners, members or stockholders
of the undersigned, to the undersigned's affiliates or to any
investment fund or other entity controlled or managed by the
undersigned; or
(iv) to any beneficiary of the undersigned pursuant to a will or
other testamentary document or applicable laws of descent.
For purposes of this lock-up agreement, "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first
cousin.
Furthermore, the undersigned may sell shares of Common Stock of the
Company purchased by the undersigned (1) from the underwriters through a
directed share program conducted as part of the Public Offering or (2) on the
open market following the Public Offering if and only if, in the case of (2)
above, (i) such sales are not required to be reported in any public report or
filing with the Securities Exchange Commission, or otherwise and (ii) the
undersigned does not otherwise voluntarily effect any public filing or report
regarding such sales, in each case (i) or (ii) above within one week of such
sale.
Neither Xxxxxxx Xxxxx nor UBS will agree to any amendment, release or
waiver with respect to any lock-up agreement of an officer or director of the
Company or any stockholder which beneficially owns (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, and including
beneficial ownership by any group, as such term is used in Rule 13d-5 of such
Act) more than 5% of the Company's Common Stock immediately before the offering
as reflected in the final prospectus relating to such Public Offering (or as
reflected in the initial filing of the registration statement related to the
Public Offering), without the prior approval of a majority of the Company's
board of directors.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the Lock-Up Securities except in compliance with the foregoing
restrictions.
This lock-up agreement shall automatically terminate upon the earlier
of (i) the termination of the Purchase Agreement if the Purchase Agreement is
terminated prior to the Closing Date (as such term is defined in the Purchase
Agreement) in accordance with its terms and (ii) either Xxxxxxx Xxxxx and UBS,
on the one hand, or the Company, on the other hand, advising the other, prior to
the execution of the Purchase Agreement, that it has determined not to proceed
with the Public Offering.
D-2
Exhibit E
FORM OF LOCK-UP FROM HY I INVESTMENTS, L.L.C.
PURSUANT TO SECTION 5(k)
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
UBS SECURITIES LLC,
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by
American Commercial Lines Inc.
Ladies and Gentlemen:
In connection with the proposed public offering by
American Commercial
Lines Inc., a corporation organized under the laws of Delaware (the "Company"),
the undersigned understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and UBS Securities LLC ("UBS")
propose to enter into a Purchase Agreement (the "Purchase Agreement") with the
Company and the Selling Shareholders providing for the public offering (the
"Public Offering") of shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"). In recognition of the benefit that such an offering
will confer upon the undersigned, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Purchase Agreement that, during
a period of 180 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx and UBS, directly
or indirectly, (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 for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file, or cause to be filed (in the undersigned's
capacity as a stockholder), any registration statement under the Securities Act
of 1933, as amended, except as contemplated by the Purchase Agreement, with
respect to any of the foregoing (collectively, the "Lock-Up Securities") or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Lock-Up Securities, whether any such swap or transaction is to be settled
by delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, prior to the commencement of trading on
the first trading day after the execution and delivery of the Purchase
Agreement, the undersigned may transfer, directly or indirectly, without
consideration, to each of the individuals identified on Schedule 1 hereto, the
number of Lock-Up Securities set forth opposite such individual's names on said
Schedule 1, without condition, and such individuals and such securities shall
not be subject to the restrictions contained in this lock-up agreement or any
other lock-up agreement not executed and delivered by such individual.
E-1
In addition, notwithstanding the foregoing, and subject to the
conditions below, the undersigned may transfer the Lock-Up Securities without
the prior written consent of Xxxxxxx Xxxxx and UBS, provided that (1) Xxxxxxx
Xxxxx and UBS shall have received a duplicate form of this lock-up agreement
from each donee, trustee, distributee, or transferee, as the case may be, (2)
any such transfer shall not involve a disposition for value, (3) such transfers
are not required to be reported in any public report or filing with the
Securities and Exchange Commission or otherwise by any such party (other than a
filing on a Form 5) and (4) the undersigned does not otherwise voluntarily
effect any such public filing or report regarding such transfers:
(v) as a bona fide gift or gifts; or
(vi) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned; or
(vii) as a distribution to limited partners, members or stockholders
of the undersigned, to the undersigned's affiliates or to any
investment fund or other entity controlled or managed by the
undersigned; or
(viii) to any beneficiary of the undersigned pursuant to a will or
other testamentary document or applicable laws of descent.
For purposes of this lock-up agreement, "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first
cousin.
Furthermore, the undersigned may sell shares of Common Stock of the
Company purchased by the undersigned (1) from the underwriters through a
directed share program conducted as part of the Public Offering or (2) on the
open market following the Public Offering if and only if, in the case of (2)
above, (i) such sales are not required to be reported in any public report or
filing with the Securities Exchange Commission, or otherwise and (ii) the
undersigned does not otherwise voluntarily effect any public filing or report
regarding such sales, in each case (i) or (ii) above within one week of such
sale.
Neither Xxxxxxx Xxxxx nor UBS will agree to any amendment, release or
waiver with respect to any lock-up agreement of an officer or director of the
Company or any stockholder which beneficially owns (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, and including
beneficial ownership by any group, as such term is used in Rule 13d-5 of such
Act) more than 5% of the Company's Common Stock immediately before the offering
as reflected in the final prospectus relating to such Public Offering (or as
reflected in the initial filing of the registration statement related to the
Public Offering), without the prior approval of a majority of the Company's
board of directors.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the Lock-Up Securities except in compliance with the foregoing
restrictions.
This lock-up agreement shall automatically terminate upon the earlier
of (i) the termination of the Purchase Agreement if the Purchase Agreement is
terminated prior to the Closing Date (as such term is defined in the Purchase
Agreement) in accordance with its terms and (ii) either Xxxxxxx Xxxxx and UBS,
on the one hand, or the Company, on the other hand, advising the other, prior to
the execution of the Purchase Agreement, that it has determined not to proceed
with the Public Offering.
E-2
