Schweitzer-Mauduit International, Inc. Common Stock, par value $0.10 per share Underwriting Agreement
Exhibit 1.1
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc.
Common Stock, par value $0.10 per share
November 11, 2009
▇▇▇▇▇▇▇, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
named in Schedule I hereto,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc., a Delaware corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an aggregate of 1,800,000 shares (the “Firm Securities”)
and, at the election of the Underwriters, up to 270,000 additional shares (the “Optional
Securities”) of Common Stock, par value $0.10 per share (“Stock”), of the Company (the Firm
Securities and the Optional Securities that the Underwriters elect to purchase pursuant to Section
2 hereof being collectively called the “Securities”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-162991) in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto
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pursuant to Rule 401(g)(2) under the Act
has been received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or
prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus supplement) relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of such registration statement,
including all exhibits thereto and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part
of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case
may be; any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”);
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(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
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, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 5:15 p.m. (Eastern
time) on the date of this Agreement. The Pricing Prospectus, as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents 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, in the
light of the circumstances under which they were made, not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder 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, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
and no such documents were filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this Agreement and prior to
the execution of this Agreement, except as set forth on Schedule II(c) hereto;
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(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus or as would not have a material adverse effect on the financial
position, stockholders’ equity or results of operations of the Company and its Significant
Subsidiaries taken as a whole (“Material Adverse Effect”); and, since the respective dates
as of which information is given in the Registration Statement and the Pricing Prospectus,
there has not been any change in the capital stock or long term debt of the Company or any
of its subsidiaries (except for subsequent issuances, if any, of Stock pursuant to employee
benefit plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement, draws in the
ordinary course of business under the Company’s Credit Agreement, dated July 31, 2006, by
and among the Company, ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ France S.A.S. and the banks named therein (the
“Credit Agreement”), and the reorganization from an “S.A.” to a “Limitada” of
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ do Brasil and the cashing out of minority shareholders therein) or any
material adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries, otherwise than asset
forth or contemplated in the Pricing Prospectus;
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(g) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are
described in the Pricing Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its subsidiaries;
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; and each “Significant Subsidiary,” as defined in Section 1.02(w)
of Regulation S-X, of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation;
(i) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform to the
description of the Stock contained in the Pricing Prospectus and Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(j) The Securities to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Securities contained in the
Prospectus;
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(k) The issue and sale of the Securities and the compliance by the Company with this
Agreement and the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their properties;
and no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions contemplated by this
Agreement except such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Securities by the
Underwriters;
(l) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (references herein to Certificate of Incorporation
or By-laws of a non-U.S. subsidiary shall be deemed to refer to the comparable documents in
the jurisdiction of formation) or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(m) The statements set forth in the Pricing Prospectus and Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute a summary of
the terms of the Stock, under the caption “Certain United States Federal Income and Estate
Tax Consequences to Non-U.S. Holders”, and under the caption “Underwriting”, insofar as
they purport to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
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(n) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject that, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to the knowledge of the Company’s Chief
Executive Officer, Chief Operating Officer, Chief Financial and Strategic Planning Officer,
Secretary and General Counsel, President of the Americas and President of European
Operations (the “Responsible Officers”), after reasonable investigation, no such
proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the
Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(q) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, and have audited the Company’s internal control
over financial reporting and management’s assessment thereof, are independent public
accountants as required by the Act and the rules and regulations of the Commission
thereunder. Deloitte Touche Tohmatsu, who have certified certain financial statements of
China Tobacco Mauduit (Jiangmen) Paper Industry Company Ltd., are independent public
accountants as required by the Act and the rules and regulations of the Commission
thereunder;
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(r) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(s) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting;
(t) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective;
(u) The market-related and industry data included in the Pricing Prospectus are based
on third party data or upon estimates by the Company derived from sources that the Company
believes to be reliable and accurate in all material respects;
(v) The Company and each of its subsidiaries own, possess or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property necessary to conduct
the business now operated by them, or presently employed by them, and to the knowledge of
the Responsible Officers after reasonable investigation, the Company and each of its
subsidiaries have not received any notice of infringement of or conflict with asserted
rights of others with respect to any patent or intellectual property rights that would be
expected to have a Material Adverse Effect;
(w) There has been no labor strike, slowdown or stoppage at the Company or any of its
subsidiaries and no labor disturbance by the employees of the Company or any of its
subsidiaries or is imminent that would be expected to have a Material Adverse Effect;
except as disclosed in the Pricing Prospectus, neither the Company nor any of its
subsidiaries is party to a collective bargaining agreement; and there are no material
unfair labor practice complaints pending against the Company or any of its subsidiaries or
threatened against any of them;
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(x) Except as disclosed in the Pricing Prospectus, the Company and each of its
subsidiaries (or, to the knowledge of the Responsible Officers of the Company after
reasonable investigation, any other entity for whose acts or omissions the Company is or
may be liable), and except as would not be expected to have a Material Adverse Effect: (i)
are conducting and have conducted their businesses and operations in compliance with
Environmental Laws (as defined below); (ii) possess and maintain in full force and effect
or have made timely application for any and all permits, licenses or registrations required
under Environmental Law for the conduct of their businesses (“Environmental Permits”);
(iii) have not, pursuant to any contract, assumed responsibility for any known or
reasonably likely material liability under Environmental Law; (iv) have not received any
written notice from a governmental authority or other third party alleging violation of
Environmental Law or liability thereunder (including, without limitation, liability as a
“potentially responsible party” (as that term is defined under Environment Law) and/or for
costs of investigating or remediating sites containing Hazardous Substances (as defined
below) and/or damages to natural resources as required under Environmental Laws); (v) are
not subject to any pending or, to the knowledge of the Company, threatened claim or other
legal proceeding under any Environmental Laws against the Company or its subsidiaries; (vi)
do not have knowledge of any unsatisfied condition in an Environmental Permit, or any
release of Hazardous Substances that, individually or in the aggregate, can reasonably be
expected to require any material capital expenditures to maintain the Company’s or the
subsidiaries’ compliance with Environmental Law or with their Environmental Permits; and
(vii) does not (a) rely on any third party for an indemnity for, or the contractual
assumption of, any known material remediation obligation or known liability under
Environmental Law and (b) have reasonable cause to believe that such third party will
default in its obligation to comply with such indemnity or contractual assumption. As used
in this paragraph, “Environmental Laws” means any and all applicable federal, state, local,
and foreign laws, regulations, requirements and common law, or any enforceable
administrative or judicial interpretation thereof, relating to pollution or the protection
of human health or the environment. As used in this paragraph, “Hazardous Substances” means
pollutants, contaminants or hazardous, dangerous or toxic substances, materials or wastes
or petroleum, petroleum products and their breakdown constituents, or any other chemical
substance regulated under Environmental Laws;
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(y) The Company and each of its Significant Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; the Company and its
Significant Subsidiaries are in compliance with the terms of such policies and instruments
in all material respects; and there are no claims by the Company or any of its Significant
Subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause where the amount of
such liability, if not insured, could have a Material Adverse Effect;
(z) Neither the Company nor any of its subsidiaries has violated any foreign, federal,
state or local law or regulation relating to any provisions of the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder except as would not have
a Material Adverse Effect;
(aa) Neither the Company nor any of its subsidiaries or, to the knowledge of the
Company after reasonable investigation, any director, officer, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury; and
(bb) Neither the Company nor any of its subsidiaries has any outstanding debt
securities that are rated by any “nationally recognized statistical rating organization”,
as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act.
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2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price per share of $56.85, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number of Optional
Securities as to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional Securities by a
fraction, the numerator of which is the maximum number of Optional Securities which such
Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the maximum number of Optional Securities that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
270,000 Optional Securities, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering sales of shares in excess of the number of Firm Securities, provided
that the purchase price per Optional Share shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Firm Securities but not
payable on the Optional Securities. Any such election to purchase Optional Securities may be
exercised only by written notice from you to the Company, given within a period of 30 calendar days
after the date of this Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as determined by you
but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless
you and the Company otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities, the several
Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth
in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in definitive form, and
in such authorized denominations and registered in such names as ▇▇▇▇▇▇▇, Sachs & Co. may request
upon at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of
the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., through the facilities of the Depository Trust Company
(“DTC”), for the account of such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of Federal
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(same-day) funds to the account
specified by the Company to ▇▇▇▇▇▇▇, Sachs & Co. at least forty-eight hours in advance. The
Company will cause the
certificates representing the Securities to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
November 17, 2009 or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree
upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the
Underwriters’ election to purchase such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇,
Sachs & Co. and the Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the “First Time of Delivery”, such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery”,
and each such time and date for delivery is herein called a “Time of Delivery”.
The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional
documents requested by the Underwriters pursuant to Section 8(j) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Closing Location”),
and the Securities will be delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the execution and delivery of this Agreement; to, prior
to the last Time of Delivery, make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus or the Prospectus which shall reasonably be
disapproved by you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; if requested by you,
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to prepare a final
term sheet, containing solely a description of the Securities and their offering and sale
hereunder, in a form approved by you and to file such term sheet pursuant to Rule 433(d)
under the Act
within the time required by such Rule; to file promptly all other material required to
be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required in connection with the offering or sale of the Securities; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Securities, of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or other prospectus or suspending any
such qualification, to promptly use its best efforts to obtain the withdrawal of such
order; and in the event of any such issuance of a notice of objection, promptly to take
such steps including, without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary to permit offers and
sales of the Securities by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the
Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be reasonably disapproved by
you promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date
of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to the Securities, in a form satisfactory to you. If
at the Renewal Deadline the Company is no longer eligible to file an automatic
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shelf
registration statement, the Company will, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory to you and will
use its best efforts to cause such registration statement to be declared effective within
180 days after the
Renewal Deadline. The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue as contemplated in the
expired registration statement relating to the Securities. References herein to the
Registration Statement shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities for offering and sale under the securities laws of such U.S.
jurisdictions as you reasonably may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(e) As soon as practicable, on the New York Business Day next succeeding the date of
this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the offering or
sale of the Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission or effect
such compliance; and in case any Underwriter is required to deliver a prospectus (or in
lieu thereof, the
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notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many written
and electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any securities of the Company that are substantially similar to the
Securities, including but not limited to any options or warrants to purchase shares of
Stock or any securities that are convertible into or exchangeable for, or that represent
the right to receive, Stock or any such substantially similar securities (other than
pursuant to employee benefit plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent;
(h) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of
Proceeds”;
(j) To use its best efforts to list, subject to notice of issuance, the Securities on
the New York Stock Exchange (the “Exchange”); and
(k) Upon request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate
logo for use on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Securities (the “License”); provided, however,
that the License shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
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6. (a) The Company represents and agrees that, without the prior consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., it has not made and will not make any offer
relating to the Securities that would constitute a “free writing prospectus” as defined in
Rule 405 under the Act; each Underwriter represents and agrees that, without the prior consent of
the Company and ▇▇▇▇▇▇▇, Sachs & Co., it has not made and will not make any offer relating to the
Securities that would constitute a free writing prospectus; any such free writing prospectus the
use of which has been consented to by the Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. is listed on Schedule
II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under
the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration Statement, the
Pricing Prospectus or the Prospectus or would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances then prevailing, not misleading, the Company will give
prompt notice thereof to ▇▇▇▇▇▇▇, Sachs & Co. and, if requested by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
will prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any statements
or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing
-16-
documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in Section 5(d) hereof,
including the fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Securities on the Exchange; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any
required review by the Financial Industry Regulatory Authority of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the cost and charges of any transfer
agent or registrar; and (viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; all material required
to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with
the Commission within the applicable time period prescribed for such filings by Rule 433;
no stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission and no notice of objection of the Commission to the use of
the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act shall have been received; no stop order suspending or preventing
the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to your reasonable satisfaction;
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(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated such Time of Delivery, as you shall have requested,
in form and substance satisfactory to you, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to you their
written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the effect that:
(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, with corporate
power and authority to own its properties and conduct its business as described in
the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company (including
the Securities being delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable and the Securities
conform to the description of the Securities in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of the states of
Georgia, New Jersey, New York and South Carolina (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each Significant Subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued shares of capital stock of each
such subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors’ qualifying shares and not more than 1% of
all issued shares of capital stock owned by minority shareholders in
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ do Brasil) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such opinions and
certificates; further, with respect to ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ do Brasil, such opinion
may reflect its current status under its pending reorganization from an “S.A.” to a
“Limitada”);
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(v) To the best of such counsel’s knowledge and other than as set forth in the
Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a Material Adverse
Effect and, to the best of such counsel’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and delivered by the
Company;
(vii) The issue and sale of the Securities being delivered at such Time of
Delivery and the compliance by the Company with this Agreement and the consummation
of the transactions herein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument listed in the exhibit index to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2008, or in subsequent Quarterly Reports on Form
10-Q, except for such conflicts, breaches or violations as would not have a Material
Adverse Effect or interfere with the consummation of the transactions contemplated
by this Agreement nor will such actions result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or any provision of any
U.S. federal law, New York state law, Georgia state law, the General Corporation Law
of the State of Delaware that in such counsel’s experience is normally applicable to
transactions of the nature contemplated by this Agreement (“Covered Laws”) or any
order, known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required
under the Covered Laws for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement except such as
have been obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Securities by the
Underwriters;
-19-
(ix) To the best of such counsel’s knowledge, neither the Company nor any of
its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws
or (B) in default in the
performance or observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound except, in the case of (B), for such defaults as would not have a Material
Adverse Effect;
(x) The statements set forth in the Prospectus under the caption “Description
of Common Stock”, insofar as they purport to constitute a summary of the terms of
the Stock, under the caption “Material United States Federal Income and Estate Tax
Consequences to Non-U.S. Holders”, and under the caption “Underwriting”, insofar as
they purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material respects;
(xi) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules or other financial data
therein, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, in the case of other
documents which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
-20-
(xiii) The Registration Statement, the Prospectus and any further amendments
and supplements thereto, as applicable, made by the Company prior to such Time of
Delivery (other than the
financial statements and related schedules and financial data therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the Pricing
Prospectus or the Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 8(c), they have no reason to believe (i) that any
part of the Registration Statement, or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
related schedules and financial data therein, as to which such counsel need express
no opinion), when such part or 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; (ii) that
the Pricing Prospectus, as of the Applicable Time, when considered together with and
as supplemented by the statements under the caption “Description of Securities” in
the Prospectus contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) that, as of
its date and as of such Time of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules therein, as to which such counsel
need express no opinion) contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be described in the
Registration Statement, the Basic Prospectus or the Prospectus which are not filed
or incorporated by reference or described as required;
-21-
(d) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any post effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at each
Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement, and as of the Time of Delivery
is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements included or incorporated by reference in
the Pricing Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus, and (ii) since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any change in the capital stock
or long term debt of the Company or any of its subsidiaries (except for subsequent
issuances, if any, of Stock pursuant to employee benefit plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding as of, the
date of this Agreement, the reorganization of ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ do Brasil from an “S.A.”
to a “Limitada” and cashing out of minority shareholders therein and draws in the ordinary
course of business under the Company’s Credit Agreement) or any change, or any development
involving a prospective change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in your judgment so
material and adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
-22-
(f) On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on
the Exchange; (ii) a suspension or material limitation in trading in the Company’s
securities on the Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States;
(iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in clause (iv)
or (v) in your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at
such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) The Company shall have complied with the provisions of Section 5(e) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the
date of this Agreement;
(h) The Securities shall have been duly listed, subject to notice of issuance, on the
Exchange; and
(i) The Company has obtained and delivered to the Underwriters executed copies of
“lock-up” agreements from the directors and officers of the Company listed on Schedule III
hereto, in the form set forth in Annex III hereto; and
(j) The Company shall have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Company satisfactory to you as to the accuracy of
the representations and warranties of the Company herein at and as of such time, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior
to such time, as to the matters set forth in subsections (a) and (e) of this Section and as
to such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state
-23-
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such action shall
be brought against any
-24-
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the indemnified party, effect
the settlement or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out
of such action 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.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company bear to the
total underwriting
-25-
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection (d) 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 subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), 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 such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the
Act and each broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
-26-
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for
you or another party or other parties to purchase such Securities on the terms contained herein.
If within thirty six hours after such default by any Underwriter you do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of thirty six
hours within which to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the Company shall have the
right to postpone such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such Securities.
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Securities which remains unpurchased does not exceed one eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the number of shares
which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on the number of
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Securities which remains unpurchased exceeds one eleventh of the aggregate
number of all the Securities to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement (or, with
respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Securities) shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
-27-
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further liability to any
Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of
you as the representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of ▇▇▇▇▇▇▇, Sachs & Co. at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by you upon request.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
-28-
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company 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 on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company agrees that any suit
or proceeding arising in respect of this agreement or our engagement will be tried exclusively in
the U.S. District Court for the Southern District of New York or, if that court does not have
subject matter jurisdiction, in any state court located in The City and County of New York and the
Company agrees to submit to the jurisdiction of, and to venue in, such courts.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and the same
instrument.
-29-
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters’ imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
-30-
If the foregoing is in accordance with your understanding, please sign and return to us six
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
| Very truly yours, ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||
| Title: | Secretary and General Counsel | |||
| Accepted as of the date hereof: ▇▇▇▇▇▇▇, Sachs & Co. |
||||
| By: | /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | |||
| (▇▇▇▇▇▇▇, Sachs & Co.) | ||||
On behalf of each of the Underwriters
-31-
SCHEDULE I
| Number of Optional | ||||||||
| Securities to be | ||||||||
| Total Number of | Purchased if | |||||||
| Firm Securities | Maximum Option | |||||||
| Underwriter | to be Purchased | Exercised | ||||||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
1,400,040 | 210,006 | ||||||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
240,120 | 36,018 | ||||||
▇▇▇▇▇▇▇▇▇ & Company LLC |
79,920 | 11,988 | ||||||
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. |
79,920 | 11,988 | ||||||
Total |
1,800,000 | 270,000 | ||||||
SCHEDULE II
Issuer Free Writing Prospectuses:
None.
Additional Documents Incorporated by Reference:
None.
-2-
SCHEDULE III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-3-
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-3
FOR REGISTRATION STATEMENTS ON FORM S-3
Pursuant to Section 8(d) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the Company and
its subsidiaries within the meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, prospective financial statements and/or pro
forma financial information) examined by them and included or incorporated by reference in
the Registration Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected financial
data, pro forma financial information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies of which
have been separately furnished to the representatives of the Underwriters (the
“Representatives”);
(iii) They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed consolidated statement
of income, consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company’s quarterly report on Form 10-Q incorporated
by reference into the Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representatives; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in the related in all
material respects with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and regulations;
-1-
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most recent fiscal
years included in the Prospectus and included or incorporated by reference in Item 6 of the
Company’s Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or incorporated by
reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the Prospectus
and/or included or incorporated by reference in the Company’s Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange Act and
the related published rules and regulations, or (ii) any material modifications
should be made to the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included or incorporated by
reference in the Company’s Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus, for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items included
in the Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the correspond ing amounts in
the audited consolidated financial statements included or incorporated by reference
in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
-2-
(C) the unaudited financial statements which were not included in the Prospectus
but from which were derived the unaudited condensed financial statements referred to
in clause (A) and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited financial statements
included or incorporated by reference in the Company’s Annual Report on Form 10-K for
the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements included
or incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation rights,
upon earn outs of performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase in the consolidated
long term debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders’ equity or other items specified by the
Representatives, or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified by the
Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
-3-
(vii) In addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in agreement.
-4-
ANNEX I(a)
EXECUTED COMFORT LETTER
-5-
ANNEX II(a)
OPINION OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
-6-
ANNEX III
FORM OF LOCK-UP AGREEMENT
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc.
Lock-Up Agreement
November 11, 2009
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc. — Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the “Representatives”), propose to
enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to
such agreement (collectively, the “Underwriters”), with ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc., a
Delaware corporation (the “Company”), providing for a public offering of the Common Stock, par
value $0.10 per share, of the Company (the “Shares”) pursuant to a Registration Statement on Form
S-3 (File No. 333-162991) under the Securities Act of 1933, as amended, filed with the Securities
and Exchange Commission (the “SEC”).
In consideration of the agreement by the Underwriters to offer and sell the Shares, and of
other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged,
the undersigned agrees that, during the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the final Prospectus covering the public offering of
the Shares, the undersigned will not offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or
any options or warrants to purchase any shares of Common Stock of the Company, or any securities
convertible into, exchangeable for or that represent the right to receive shares of Common Stock of
the Company, whether now owned or hereinafter acquired, owned directly by the undersigned
(including holding as a custodian) or with respect to which the undersigned has beneficial
ownership within the rules and regulations of the SEC (collectively the “Undersigned’s Shares”).
The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any
hedging or other transaction which is designed to or which reasonably could be expected to lead to
or result in a sale or disposition of the Undersigned’s Shares even if such
Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or
other transactions would include without limitation any short sale or any purchase, sale or grant
of any right (including without limitation any put or call option) with respect to any of the
Undersigned’s Shares or with respect to any security that includes, relates to, or derives any
significant part of its value from such Shares.
-7-
Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Shares (i) as a
bona fide gift or gifts, provided that the donee or donees thereof, other than charitable
organizations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986,
agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct
or indirect benefit of the undersigned or the immediate family of the undersigned, provided that
the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for value, or (iii) with
the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of the Underwriters. For purposes of
this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the
undersigned is a corporation, the corporation may transfer the capital stock of the Company to any
wholly-owned subsidiary of such corporation; provided, however, that in any such
case, it shall be a condition to the transfer that the transferee execute an agreement stating that
the transferee is receiving and holding such capital stock subject to the provisions of this
Agreement and there shall be no further transfer of such capital stock except in accordance with
this Agreement, and provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clause (i), (ii), or (iii) above,
for the duration of this Lock-Up Agreement will have, good and marketable title to the
Undersigned’s Shares, free and clear of all liens, encumbrances, and claims whatsoever. 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 Undersigned’s Shares except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further
understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors, and assigns.
| Very truly yours, |
||||
| Exact Name of Shareholder | ||||
| Authorized Signature | ||||
| Title | ||||
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