AMERICAN REPROGRAPHICS COMPANY 5,666,195 Shares of Common Stock Underwriting Agreement
EXHIBIT 1.1
5,666,195 Shares of Common Stock
Underwriting Agreement
March 8, 2007
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxxx & Co. Incorporated
CIBC World Markets Corp.
Xxxxxxx Xxxxx & Company, L.L.C.
Credit Suisse Securities (USA) LLC
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxxx & Co. Incorporated
CIBC World Markets Corp.
Xxxxxxx Xxxxx & Company, L.L.C.
Credit Suisse Securities (USA) LLC
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the “Selling Stockholders”) of American
Reprographics Company, a Delaware corporation (the “Company”), propose to sell to the several
Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate of 5,666,195 shares (the “Underwritten
Shares”) and, at the option of the Underwriters, up to an additional 849,428 shares (the “Option
Shares”) of the Common Stock, par value $.001 per share (the “Stock”), of the Company. The
Underwritten Shares and the Option Shares are herein referred to as the “Shares”.
The Company and the Selling Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-141009) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it becomes effective, including the information, if
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any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430 Information”), is referred
to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus (together with any supplement thereto) included in such registration
statement (and any amendments thereto) before it becomes effective, any prospectus (together with
any supplement thereto) filed with the Commission pursuant to Rule 424(a) under the Securities Act
and the prospectus (together with any supplement thereto) included in the Registration Statement at
the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the
prospectus in the form first used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement, 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 Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case
may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Shares were first made (the “Time of Sale”), the
Company had prepared the following information (collectively with the information set forth on
Annex B(ii), the “Time of Sale Information”): a Preliminary Prospectus dated March 1, 2007
(including a base prospectus dated March 1, 2007), and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex B(i) hereto.
2. Purchase of the Shares by the Underwriters. (a) Each of the Selling Stockholders
agrees, severally and not jointly, to sell the Shares to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from each of the Selling Stockholders at a purchase price per share of
$30.718125 (the “Purchase Price”) the number of Underwritten Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of Underwritten Shares
to be sold by each of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number of Underwritten
Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the aggregate number of Underwritten Shares to be
purchased by all the Underwriters from all of the Selling Stockholders hereunder.
In addition, the Selling Stockholders, as and to the extent indicated in Schedule II hereto,
agree, severally and not jointly, to sell the Option Shares to the several Underwriters and the
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Underwriters shall have the option to purchase at their election up to 849,428 Option Shares at
the Purchase Price. The Underwriters, on the basis of the representations and warranties and
agreements herein contained and subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from each of the Selling Stockholders at the Purchase Price
that portion of the number of Option Shares 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
Option Shares by a fraction the numerator of which is the maximum number of Option Shares which
such Underwriter is entitled to purchase and the denominator of which is the maximum number of
Option Shares which all of the Underwriters are entitled to purchase hereunder. Any such election
to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be
sold by each Selling Stockholder as set forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the date of this Agreement,
by written notice from the Representatives to the Selling Stockholders or their respective
Attorneys-in-Fact (as defined below), as applicable. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date nor later than the
tenth full business day (as hereinafter defined) after the date of such notice (unless such time
and date are postponed in accordance with the provisions of Section 12 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(a) The Selling Stockholders understand that the Underwriters intend to make a public offering
of the Shares as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Shares on the terms set forth in the
Prospectus. The Selling Stockholders acknowledge and agree that the Underwriters may offer and
sell Shares to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Shares purchased by it to or through any Underwriter.
(b) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Selling Stockholders or their respective Attorneys-in-Fact (as defined
below), as applicable, for the respective Selling Stockholders to the Representatives, in the case
of the Underwritten Shares, at the offices of X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 A.M. New York City time on March 14, 2007, or at such other time or
place on the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Selling Stockholders or their respective Attorneys-in-Fact, as applicable,
may agree upon in writing or, in the case of the Option Shares, on the date and at the time and
place specified by the Representatives in the written notice of the Underwriters’ election to
purchase such Option Shares. The time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date” and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”.
The Attorney-in-Fact for Xxxxx Xxx shall be the Company and it is understood and acknowledged that
the Company shall deduct, from the
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payment for the Shares to be sold by Xx. Xxx, an amount equal to the exercise price with
respect to the options to be exercised by Xx. Xxx and any applicable tax withholdings.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Selling Stockholders. The certificates for the Shares will be made available for
inspection and packaging by the Representatives at the office of X.X. Xxxxxx Securities Inc. set
forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing
Date or the Additional Closing Date, as the case may be.
(c) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Selling Stockholders with respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult
with their own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date and as of the Additional Closing Date, as the case may be,
will not, contain any untrue statement of a material fact or omit to state a material fact necessary
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in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Time of Sale Information. No statement of
material fact included in the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is required to be included
in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy
the Shares (each such communication by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents listed on Annex B(i) hereto and other
written communications approved in writing in advance by the Representatives. Each such Issuer
Free Writing Prospectus (A) complied in all material respects with the Securities Act, (B) has been
filed in accordance with the Securities Act (to the extent required thereby), (C) when taken
together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date and at the Additional Closing
Date, as the case may be, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (D) did not, and at the Closing Date
and at the Additional Closing Date, as the case may be, will not, conflict with the information
contained in the Registration Statement, the Preliminary Prospectus, the Prospectus or the Time of
Sale Information; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic
effective registration statement” as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or, to the best of the Company’s
knowledge, threatened by the Commission; as of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement complied and will comply in all
material respects with the Securities Act, and did not and will
not contain any untrue statement of a material fact or omit to state a material fact
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required to be stated therein or necessary in order to make the statements therein not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and
as of the Additional Closing Date, as the case may be, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement and the Prospectus and
any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, 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 Securities Act or the Exchange Act, as applicable, and none of such documents contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed prior to the Closing Date or
Additional Closing Date, as the case may be, and incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, 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 Securities Act or the Exchange Act, as applicable, and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(f) Financial Statements. The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and present
fairly the financial position of the Company and its subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby, and any supporting schedules
included or incorporated by reference in the Registration Statement present fairly the information
required to be stated therein; and the other financial information included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and presents fairly the
information shown thereby; and any pro forma financial information and any related
notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro
forma financial information are reasonable and are set forth in the Registration Statement, the
Time of Sale Information and the Prospectus.
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(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii)
neither the Company nor any of its subsidiaries has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the Prospectus.
(h) Organization and Good Standing. The Company and each of its “significant subsidiaries”
(as defined in Section 16) have been duly organized and are validly existing and in good standing
under the laws of their respective jurisdictions of organization, are duly qualified to do business
and are in good standing in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on
the business, properties, management, financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”). The
subsidiaries listed in Annex C to this Agreement are the only significant subsidiaries of the
Company.
(i) Capitalization. The Company has an authorized capitalization as set forth in the Time of
Sale Information and the Prospectus under the heading “Capitalization”; all the outstanding shares
of capital stock of the Company (including the Shares to be sold by the Selling Stockholders) have
been duly and validly authorized and issued and are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights; except as described in or expressly contemplated by
the Time of Sale Information and the Prospectus, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest in the Company or
any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the Company or any such subsidiary, any
such convertible or exchangeable securities or any such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the Prospectus; and all the outstanding
shares of capital stock or other equity interests of each subsidiary of the Company have been duly
and validly authorized and issued,
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are fully paid and non-assessable and are owned directly or indirectly by the Company, free
and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or
any other claim of any third party, except pursuant to the Company’s Second Amended and Restated
Credit and Guarantee Agreement dated December 21, 2005, as amended by the First Amendment to Second
Amended and Restated Credit and Guaranty Agreement dated effective as of July 17, 2006.
(j) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
(k) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(l) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default in the due
performance or observance of any obligation, agreement, covenant or condition contained in 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; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) No Conflicts. The execution, delivery and performance by the Company of this Agreement,
and the consummation by the Company of the transactions contemplated hereby will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, 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, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority having jurisdiction over the Company or its subsidiaries or their property or assets,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby, except for the registration of
the Shares under the Securities Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution of the Shares by the
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Underwriters, and except where the failure to obtain any such consent, approval, authorization,
order, registration or qualification would not, individually or in the aggregate, affect the
validity of the Shares and would not have a Material Adverse Effect.
(o) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is a party or
to which any property of the Company or any of its subsidiaries is subject that, individually or in
the aggregate, if determined adversely to the Company or any of its subsidiaries, would have a
Material Adverse Effect; to the knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement that are not so described in the Registration Statement, the Time of Sale
Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale
Information and the Prospectus.
(p) Independent Accountants. PricewaterhouseCoopers LLP, who has certified certain financial
statements of the Company and its subsidiaries is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board (United States) and as required
by the Securities Act.
(q) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made of such
property by the Company and its subsidiaries or (ii) would not, individually or in the aggregate,
have a Material Adverse Effect.
(r) Title to Intellectual Property. Each of the Company and its subsidiaries owns or
possesses, or can acquire on reasonable terms, all intellectual property rights necessary for the
conduct of its business as currently carried on and as currently proposed to be carried on as
described in the Prospectus (collectively, the “Intellectual Property”), except where the failure
to own or possess, or be able to acquire, such Intellectual Property would not have a Material
Adverse Effect; except as described in the Prospectus, (i) no third parties have received any
material rights to any such Intellectual Property from the Company or any of its subsidiaries,
other than licenses granted in the ordinary course of business; (ii) to the Company’s knowledge,
there is no infringement by third parties of any such Intellectual Property; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s or any of its subsidiaries’ rights in or to, or the enforceability,
validity or scope of, any such Intellectual Property; and (iv) to the Company’s knowledge, none
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of the technology employed by the Company or any of its subsidiaries has been obtained or is
being used by the Company or any of its subsidiaries in violation of the rights of any other
person.
(s) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Time of Sale Information.
(t) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares as described in the Registration Statement, the Time of Sale Information and the
Prospectus, will not be required to register as an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder (collectively, “Investment Company
Act”).
(u) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof other than any
amounts being contested in good faith; and except as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets, except for any deficiency which would
not, individually or in the aggregate, have a Material Adverse Effect.
(v) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Information, and the Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor
any of its subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where any
revocation or modification or inability to renew would not, individually or in the aggregate, have
a Material Adverse Effect.
(w) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not, individually or in the aggregate, have a Material Adverse Effect.
10
(x) Compliance With Environmental Laws. (i) The Company and its subsidiaries (x) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (y) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable Environmental
Laws to conduct their respective businesses; and (z) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants except as such has been classified as a “de
minimis” potentially responsible party by the Environmental Protection Agency, and (ii) to the
Company’s knowledge, there are no costs or liabilities associated with Environmental Laws
applicable to the Company or its subsidiaries, except, in the case of each of (i)(x), (i)(y), and
(i)(z) above, for any such failure to comply, or failure to receive required permits, licenses or
approvals, or cost or liability as would not, individually or in the aggregate, have a Material
Adverse Effect.
(y) Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its subsidiaries for employees or former
employees of the Company and its subsidiaries has been maintained in compliance in all material
respects with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any such plan excluding transactions effected pursuant to
a statutory or administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(z) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act. The Company has taken all necessary
actions to ensure that the Company’s auditors and the Audit Committee of the Board of Directors
will be timely advised of (i) any significant deficiencies in the design or operation of internal
controls which could adversely affect the Company’s ability to record, process, summarize, and
report financial data; and (ii) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s internal controls. The Company has
taken all necessary
11
actions to ensure that any material weaknesses in internal controls will be identified for the
Company’s auditors.
(aa) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, 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, including, but not limited to, internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there are no material
weaknesses in the Company’s internal controls.
(ab) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as the Company believes are
adequate to protect the Company and its subsidiaries and their respective businesses; and neither
the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance or (ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its business.
(ac) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock or other equity, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets
to the Company or any other subsidiary of the Company except pursuant to the Company’s Second
Amended and Restated Credit and Guarantee Agreement dated December 21, 2005, as amended by the
First Amendment to Second Amended and Restated Credit and Guaranty Agreement dated effective as of
July 17, 2006.
(ad) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
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(ae) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or, to the best knowledge of the Company, the
sale of the Shares to be sold by the Selling Stockholders hereunder, except for any rights that
have been waived.
(af) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(ag) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(ah) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(ai) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply in all material
respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to
loans and Sections 302 and 906 related to certifications.
(aj) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act at the times specified
in the Securities Act in connection with the offering of the Shares. The Company has paid the
registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay
such fees within the time period required by such rule (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
(ak) NYSE Governance Requirements. The Company is in compliance in all material respects with
all applicable corporate governance requirements set forth in the Listed Company Manual of the New
York Stock Exchange (the “Exchange”).
4. Representations and Warranties of the Selling Stockholders. Each of the Selling
Stockholders severally and not jointly represents and warrants to each Underwriter and the Company
that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney (the “Power of Attorney”), if applicable, and the Custody Agreement (the “Custody
Agreement”) hereinafter referred to, and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder, have been obtained (except that no representation
or warranty is made with respect to registration under the Securities Act of the Shares or with
13
respect to any consents, approvals, authorizations, registrations or qualifications as may be
required under state securities laws or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters, but no implication is intended that such
registration or such consents, approvals, authorizations, registrations or qualifications have not
been obtained); and such Selling Stockholder has full right, power and authority to enter into this
Agreement, the Power of Attorney, if applicable, and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; this Agreement,
the Power of Attorney, if applicable, and the Custody Agreement have each been duly authorized,
executed and delivered by such Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by such Selling Stockholder of this
Agreement, the Power of Attorney, if applicable, and the Custody Agreement, the sale of the Shares
to be sold by such Selling Stockholder and the consummation by such Selling Stockholder of the
transactions herein and therein contemplated will not (i) 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 such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of such Selling
Stockholder, if applicable, or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory agency having
jurisdiction over such Selling Stockholder or its property or assets, except, in the case of clause
(i) and (iii) above, for any such conflict, breach or violation that would not, individually or in
the aggregate, affect the validity of the Shares and would not have a Material Adverse Effect.
(c) Title to Shares. Such Selling Stockholder has (or has the ability to obtain prior to the
Closing Date or Additional Closing Date, as the case may be) good and valid title to the Shares to
be sold at the Closing Date or the Additional Closing Date, as the case may be, by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities or adverse claims; such
Selling Stockholder will have, immediately prior to the Closing Date or the Additional Closing
Date, as the case may be, good and valid title to the Shares to be sold at the Closing Date or the
Additional Closing Date, as the case may be, by such Selling Stockholder, free and clear of all
liens, encumbrances, equities or adverse claims; and, upon delivery of the certificates
representing such Shares and payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or adverse claims, will pass to the several
Underwriters.
(d) No Stabilization. Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(e) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
14
made, not misleading; provided that such Selling Stockholder makes no representation
and warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Time of Sale Information;
provided, further, that such Selling Stockholder’s representation under this
Section 4(e) shall only apply to any untrue statement of a material fact or omission to state a
material fact made in reliance upon and in conformity with any information relating to such Selling
Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in
the Time of Sale Information.
(f) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
such Selling Stockholder (including its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus, other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex B(i)
hereto and other written communications approved in writing in advance by the Company and the
Representatives.
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act, and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that such Selling Stockholder makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement, the Time of Sale
Information and the Prospectus and any amendment or supplement thereto; provided,
further, that such Selling Stockholder’s representation under this Section 4(g) shall only
apply to any untrue statement of a material fact or omission to state a material fact made in
reliance upon and in conformity with any information relating to such Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement thereto).
(h) Material Information. As of the date hereof, as of the Closing Date and as of the
Additional Closing Date, as the case may be, the sale of the Shares by such Selling Stockholder is
not and will not be prompted by any material information concerning the Company which is not set
forth or incorporated in the Registration Statement, the Time of Sale Information or the
Prospectus.
15
Each of the Selling Stockholders represents and warrants that certificates in negotiable form
or book-entry form representing all of the Shares to be sold by such Selling Stockholders hereunder
have been placed in custody under a Custody Agreement relating to such Shares, in the form
heretofore furnished to you, duly executed and delivered by such Selling Stockholder to Mellon
Investor Services LLC, as custodian (the “Custodian”), and that, if applicable, such Selling
Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished
to you, appointing the person or persons indicated in Schedule II hereto, and each of them, as such
Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the
“Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling
Stockholders as provided herein, to authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with
the transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares represented by the
certificates or in book-entry form, held in custody for such Selling Stockholder under the Custody
Agreement, are subject to the interests of the Underwriters hereunder, and that the arrangements
made by such Selling Stockholder for such custody, and the appointment, if applicable, by such
Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable. Each of the Selling Stockholders specifically agrees that the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder, or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the termination of such estate or trust, or in
the case of a partnership, corporation or similar organization, by the dissolution of such
partnership, corporation or organization, or by the occurrence of any other event. If any
individual Selling Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership, corporation or
similar organization should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on
behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination, dissolution or other
event.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act, and will 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 is required in connection with the offering or sale
16
of the Shares; and the Company will furnish copies of the Prospectus and each Issuer Free
Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request. The Company will pay
the registration fees for this offering within the time period required by Rule 456 (b)(i) under
the Securities Act prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
three signed copies of the Registration Statement as originally filed and each amendment thereto,
in each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing
Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the
Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, whether before
or after the time that the Registration Statement becomes effective, the Company will furnish to
the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer
to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. During the Prospectus Delivery Period, the Company will
advise the Representatives promptly (i) when the Registration Statement has become effective; (ii)
when any amendment to the Registration Statement has been filed or becomes effective; (iii) when
any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (v) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances existing
when the
17
Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; (vii) of the receipt by the Company 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 Securities Act; and (viii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Shares for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use its best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification of the Shares and, if any such
order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would 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,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies
18
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first fiscal
quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the initial public offering of
the Shares, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable
for Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representatives, other than the Shares to be
sold hereunder and any shares of Stock of the Company issued under existing employee stock plans.
(i) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(j) Reports. During a period of three years from the effective date of the Registration
Statement, the Company will furnish to the Representatives, as soon as they are available, copies
of all reports or other communications (financial or other) furnished to holders of the Shares, and
copies of any reports and financial statements furnished to or filed with the Commission, the
Exchange or any other national securities exchange or automatic quotation system, unless such
reports or communications are available through XXXXX.
(k) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(l) Trademark License. Upon request of any Underwriter, the Company will 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 Shares (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.
6. Further Agreements of the Selling Stockholders. Each of the Selling Stockholders
covenants and agrees with each Underwriter that:
(a) Clear Market. For a period of 90 days after the date of the initial public offering of
the Shares, such Selling Stockholder will not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Stock or any securities convertible into or exercisable or
19
exchangeable for Stock or (ii) enter into any swap or other agreement that transfers, in whole
or in part, any of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such
other securities, in cash or otherwise or (iii) make any demand for or exercise any right with
respect to the registration of any shares of Stock or any security convertible into or exercisable
or exchangeable for Stock without the prior written consent of the Representatives, in each case
other than the Shares to be sold by such Selling Stockholder hereunder and except as permitted by
the form of Lock-Up Agreement set forth as Exhibit A.
(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters’ documentation of their compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex B(i) or prepared pursuant to Section 3(c)
or Section 4(c) above, or (iii) any free writing prospectus prepared by such underwriter and
approved by the Company in advance in writing (each such free writing prospectus referred to in
clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially set forth in the form of Annex B(ii) hereto and may
orally provide the pricing information set forth in Annex B(ii) hereto without the consent of the
Company.
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional
Closing Date, as the case may be, as provided herein is subject to the performance by the
20
Company and each of the Selling Stockholders of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act, shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 5(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The respective representations and warranties of the
Company and the Selling Stockholders contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers and of each of the Selling Stockholders made in any
certificates delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the earlier of the Time of Sale or the execution and delivery
of this Agreement, (i) no downgrading shall have occurred in the rating accorded any securities or
preferred stock of or guaranteed by the Company or any of its subsidiaries by any “nationally
recognized statistical rating organization”, as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook with respect to, its
rating of any securities or preferred stock of or guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares
on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the
manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (i) confirming that such officers have
carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and,
to the best knowledge of such officers, the representations of the Company set
forth in Sections 3(b), 3(c) and 3(d) hereof are true and correct, (ii) confirming that the
other representations and warranties of the Company in this Agreement are true and correct and that
21
the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date and (iii) to the effect set forth
in paragraphs (a), (c) and (d) above and (ii) of the Selling Stockholders, in form and substance
reasonably satisfactory to the Representatives, (A) confirming that the representations of such
Selling Stockholders set forth in Sections 4(e), 4(f) and 4(g) hereof is true and correct and (B)
confirming that the other representations and warranties of such Selling Stockholders in this
agreement are true and correct and that the such Selling Stockholders have complied with all
agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or
prior to such Closing Date.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, PricewaterhouseCoopers LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus; provided, that the letter delivered on the
Closing Date or the Additional Closing Date, as the case may be shall use a “cut-off” date no more
than three business days prior to such Closing Date or such Additional Closing Date, as the case
may be.
(g) Opinion of Counsel for the Company. Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxx, LLP, counsel
for the Company, shall have furnished to the Representatives, at the request of the Company, their
written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A(i) hereto.
(h) Opinion of Counsel for the Selling Stockholders. Xxxxxx Xxxxxx LLP, counsel for certain
Selling Stockholders, and Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxx, LLP, counsel for the other
Selling Stockholders, shall have furnished to the Representatives, at the request of such Selling
Stockholders, their written opinion, dated the Closing Date or the Additional Closing Date, as the
case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A(ii) and Annex A(iii), respectively, hereto.
(i) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Sale. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no
22
injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the sale of the Shares.
(k) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its significant subsidiaries in their respective jurisdictions of organization and
their good standing as foreign entities in such other jurisdictions as the Representatives may
reasonably request, in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities or agencies of such jurisdictions.
(l) Lock-Up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain stockholders, officers and directors of the Company relating to
sales and certain other dispositions of shares of Stock or certain other securities, delivered to
you on or before the date hereof, shall be in full force and effect on the Closing Date or the
Additional Closing Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company and the Selling Stockholders shall have furnished to the
Representatives such further certificates and documents as the Representatives may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information (including any Time of Sale Information that has
subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading, in
each case except insofar as such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to any Underwriter furnished to the
23
Company in writing by such Underwriter through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling
Stockholders severally, and not jointly, agrees to indemnify and hold harmless each Underwriter,
its affiliates, directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the indemnity set forth in paragraph (a) above, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (c) below;
provided, however, that (i) each Selling Stockholder’s agreement to indemnify and
hold harmless hereunder shall only apply insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating to such Selling
Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in
the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus or any Time of Sale Information, and (ii) the aggregate amount of each
Selling Shareholder’s liability pursuant to this Section 9(b) shall not exceed the product of the
number of Shares sold by such Selling Stockholder (including any Option Shares) and the purchase
price per share set forth in Section 2.
(c) Indemnification of the Company and the Selling Stockholders. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in the Registration Statement,
the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any
Time of Sale Information, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in the fifth paragraph
under the caption “Underwriting”, the information contained in the eleventh and twelfth paragraphs under
the caption “Underwriting”.
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
24
any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs (a), (b) and
(c) of this Section 9, such person (the “Indemnified Person”) shall promptly notify the person
against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraphs (a), (b) and (c) of this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under paragraphs (a), (b) and (c) of this Section 9. If any such proceeding shall be brought
or asserted against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified
Person (who shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary or (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person. It is understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such reasonable fees and expenses shall be paid or reimbursed as
they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and
officers and any control persons of such Underwriter shall be designated in writing by the
Representatives, any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the
Company and any such separate firm for the Selling Stockholders shall be designated in writing by
the Selling Stockholders or their respective Attorneys-in-Fact, as applicable. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages
25
or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, from the offering of the
Shares or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Selling Stockholders, on the one hand, and the
Underwriters, on the other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders, on the one hand, and
the Underwriters, on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Selling Stockholders from the sale of the
Shares and the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate offering price of the Shares. The relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company and the Selling Stockholders or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Person in connection
with any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall
an Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the offering of
the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section
9 are several in proportion to their respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties.
26
11. Termination. This Agreement may be terminated in the absolute discretion of
the Representatives, by notice to the Company and the Selling Stockholders, if after the earlier of
the Time of Sale and the execution and delivery of this Agreement and prior to the Closing Date or,
in the case of the Option Shares, prior to the Additional Closing Date (i) trading generally shall
have been suspended or materially limited on or by any of the Exchange or the National Association
of Securities Dealers, Inc.; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities shall have been declared by federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States shall have occurred; or (iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity or crisis, either
within or outside the United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and
in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
12. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company and
the Selling Stockholders on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non defaulting Underwriters or the Company and the
Selling Stockholders may postpone the Closing Date or the Additional Closing Date, as the case may
be, for up to five full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholders or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires,
any person not listed in Schedule I hereto that, pursuant to this Section 12, purchases Shares that
a defaulting Underwriter agreed but failed to purchase.
(a) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of Shares
27
that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 12 shall be without liability on the part of the Company and the Selling
Stockholders, except that the Company will continue to be liable for the payment of expenses as set
forth in Section 13 hereof and except that the provisions of Section 9 hereof shall not terminate
and shall remain in effect.
(c) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
13. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus
(including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii)
the costs of reproducing and distributing each of this Agreement and the closing documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Shares under the laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) the cost
of preparing stock certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with any filing with,
and clearance of the offering by, the National Association of Securities Dealers, Inc.; and (ix)
all expenses and application fees related to the listing of the Shares on the Exchange;
provided, however, that, except as provided in Section 9 or Section 13(b), the
Underwriters will pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected
with any offers they may make.
(a) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholders for any reason fail to tender the Shares for delivery to the
28
Underwriters or (iii) the Underwriters decline to purchase the Shares for any reason permitted
under this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs
and expenses (including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Shares and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set
forth in Rule 1-02 of Regulation S-X under the Exchange Act.
17. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. jointly
on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. and
Xxxxxxx, Sachs & Co. shall be binding upon the Underwriters.
(a) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000); Attention:
Equity Syndicate Desk and c/o Goldman, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(fax: (000) 000-0000); Attention: Registration Department. Notices to the Company shall be given
to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (Fax: (000) 000-0000);
Attention: Chief Executive Officer. Notices to Xxxxxxxxxxxxx Xxxxxxxxxxxx shall be
given to Xx. Xxxxxxxxxxxx c/o the Company at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (Fax: (000) 000-0000); Attention: Xxxxxxxxxxxxx Xxxxxxxxxxxx. Notices to Xxxxx
Xxx shall be given to the Company (as Attorney-in-Fact) at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 (Fax: (000) 000-0000); Attention: Chief Executive Officer. Notices to
ARC Acquisition Co., L.L.C.,
CHS Associates IV or Xxxxx Xxxxx shall be given to ARC Acquisition Co., L.L.C., c/o Code
29
Xxxxxxxx & Xxxxxxx LLC at 00 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Fax: (000) 000-0000).
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(c) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(d) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
30
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, AMERICAN REPROGRAPHICS COMPANY |
||||
By: | /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Title: | Chief Executive Officer | |||
XXXXXXXXXXXXX XXXXXXXXXXXX |
||||
/s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | ||||
In his individual capacity |
||||
XXXXX XXX | ||||
By: | AMERICAN REPROGRAPHICS COMPANY | |||
By: | /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Title: | Chief Executive Officer | |||
As Attorney-in-Fact acting on behalf of the Selling Stockholder named above. |
||||
Underwriting Agreement
ARC ACQUISITION CO., L.L.C. CHS ASSOCIATES IV XXXXX XXXXX |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx |
|||
As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named above. | ||||
Underwriting Agreement
Accepted: March 8, 2007 | ||||
X.X. XXXXXX SECURITIES INC. | ||||
XXXXXXX, SACHS & CO. | ||||
XXXXXX X. XXXXX & CO. INCORPORATED | ||||
CIBC WORLD MARKETS CORP. | ||||
CREDIT SUISSE SECURITIES (USA) LLC | ||||
XXXXXXX XXXXX & COMPANY, L.L.C. | ||||
For themselves and on behalf of the several Underwriters listed in Schedule I hereto. | ||||
By:
|
X.X. XXXXXX SECURITIES INC. | |||
By
|
/s/ Xxxx Xxxxxxxxx
|
|||
Authorized Signatory | ||||
Xxxx Xxxxxxxxx | ||||
Vice President | ||||
By:
|
XXXXXXX, SACHS & CO. | |||
By
|
/s/ Xxxxxxx Xxxxx & Co.
|
|||
(Xxxxxxx, Sachs & Co.) |
Underwriting Agreement
Schedule I
Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities Inc. |
1,983,168 | |||
Xxxxxxx, Sachs & Co. |
1,416,549 | |||
Xxxxxx X. Xxxxx & Co. Incorporated |
708,274 | |||
CIBC World Markets Corp. |
708,274 | |||
Xxxxxxx Xxxxx & Company, L.L.C. |
566,620 | |||
Credit Suisse Securities (USA) LLC |
283,310 | |||
Total |
5,666,195 |
Any purchase by the Underwriters of Option Shares will be made in the same proportions as above.
Schedule II
Number of | Number of | |||||||
Selling Stockholders: | Underwritten Shares: | Option Shares: | ||||||
Xxxxxxxxxxxxx Xxxxxxxxxxxx |
870,000 | 130,000 | ||||||
Xxxxx X. Xxx 1 |
86,957 | 13,043 | ||||||
ARC Acquisition Co., L.L.C. 2 |
4,700,000 | 705,000 | ||||||
CHS Associates IV 2 |
8,783 | 1,317 | ||||||
Xxxxx Xxxxx 2 |
455 | 68 | ||||||
Total |
5,666,195 | 849,428 |
1. | Such Selling Stockholder’s attorney-in-fact is American Reprographics Company. | |
2. | Such Selling Stockholder’s attorneys-in-fact are Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx. |
Annex A(i)
Subject Matter of Opinion of Xxxxxx, Xxxxxxxx, Marcus, Vlahos, & Xxxx LLP
(i) The Registration Statement is an “automatic effective registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three
years prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified therein; and no order suspending the
effectiveness of the Registration Statement has been issued, no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or
in connection with the offering is pending or, to the best knowledge of such counsel, threatened by
the Commission.
(ii) 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 Prospectus;
(iii) The Company has an authorized capitalization as set forth in the Prospectus, and the
Shares being delivered at such Closing Date or Additional Closing Date, as the case may be, have
been duly and validly authorized and issued and are fully paid and non assessable; and the Shares
conform to the description of the Stock contained in the Prospectus;
(iv) The Company 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 failure to be so qualified in any such jurisdiction
(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);
(v) Each significant subsidiary of the Company has been duly organized and is validly existing
as a corporation or other business entity in good standing under the laws of its jurisdiction of
organization; and all of the issued shares of capital stock or other equity securities of each such
significant subsidiary have been duly and validly authorized and issued, are fully paid and non
assessable in the case of capital stock, and (except for directors’ qualifying shares and except as
described in the Prospectus) 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 significant subsidiaries, provided that such
counsel shall state that they believe that both you and they are justified in relying upon such
opinions and certificates);
A-1
(vi) We hereby confirm to you that to the actual knowledge of the Primary Lawyer Group (to be
defined in such opinion as lawyers at such firm who have been actively involved in the transaction
and any other lawyers at such firm who have had significant involvement with the Company or its
subsidiaries) 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 the actual knowledge of this firm’s Primary Lawyer Group, no
such proceedings have been threatened by governmental authorities or threatened by others;
(vii) Each of the Company and its significant subsidiaries owns or possesses, or can acquire
on reasonable terms, all Intellectual Property; except as described in the Prospectus, (i) to
counsel’s actual knowledge, no third parties have received rights to any such Intellectual Property
from the Company or any of its significant subsidiaries, other than licenses granted in the
ordinary course of business; (ii) to counsel’s actual knowledge, there is no infringement by third
parties of any such Intellectual Property; (iii) counsel confirms based on the actual knowledge of
this firm’s Primary Lawyer Group that there is no action, suit, proceeding or claims pending or
threatened by others challenging the Company’s or any of its significant subsidiaries’ rights in or
to, or the enforceability, validity or scope of, any such Intellectual Property; (iv) to counsel’s
actual knowledge, it is unaware of any facts which would form a basis for any such claim; and (v)
to counsel’s actual knowledge, none of the technology employed by the Company or any of its
significant subsidiaries has been obtained or is being used by the Company or any of its
significant subsidiaries in violation of the rights of any other person;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) The compliance by the Company with all of the provisions of 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 document
filed as an exhibit to the Registration Statement or incorporated by reference therein 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 known to
such counsel of any court or governmental agency or body having jurisdiction over the Company or
any of its significant subsidiaries or any of their properties;
(x) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date or the
Additional Closing Date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records 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
A-2
the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel has 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 Securities Act,
any untrue statement of 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 Exchange Act with the Commission, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statement therein,
in the light of the circumstances under which they were made when such documents were so filed, not
misleading;
(xi) Although they do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Time of Sale Information or the
Prospectus, they have no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to such Closing Date or
Additional Closing Date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records therein, as to which such
counsel need express no opinion) 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, that the Time of Sale Information, at the Time of Sale (which such counsel may assume
to be the date of this Agreement) contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Closing Date or Additional
Closing Date, as the case may be, (other than the financial statements and related schedules and
other financial data derived from accounting records therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Closing Date or Additional Closing Date, as the case may
be, either the Registration Statement, the Time of Sale Information or the Prospectus or any
further amendment or supplement thereto made by the Company prior to such Closing Date or
Additional Closing date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records therein, as to which such
counsel need express no opinion) contains an untrue statement of a material fact 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 described in the Registration
Statement, the Time of Sale Information or the Prospectus which are not filed or described as
required;
(xii) No consent, approval, authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties is required for the consummation by the Company of the
transactions contemplated by this Agreement, except (a) the registration under the Securities Act
of the Shares, (b) such consents, approvals, authorizations, registrations or
A-3
qualifications as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters, or (c) such consents, approvals,
authorizations, registrations or qualifications as may be required by the National Association of
Securities Dealers, Inc., in each of cases (b) and (c) as to which such counsel express no opinion;
(xiii) The statements set forth in the Prospectus under the caption “Description of Common
Stock and Preferred Stock” insofar as they relate to provisions of the Company’s Certificate of
Incorporation and Bylaws, and set forth in the Prospectus under the caption “Underwriting,” insofar
as they purport to relate to provisions of the Agreement, are accurate and complete in all material
respects;
(xiv) The Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended; and
(xv) The Registration Statement , the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Time of Sale Information and the Prospectus and any further amendments
and supplements thereto made by the Company prior to such Closing Date or Additional Closing Date,
as the case may be, (other than the documents incorporated by reference, the financial statements
and related schedules and other financial data derived from accounting records therein, as to which
such counsel need express no opinion) comply as to form in all material respects with the
requirements of the Securities Act.
A-4
Annex A(ii)
Subject Matter of Opinion of Xxxxxx Xxxxxx LLP
as Counsel for Certain Selling Stockholders
as Counsel for Certain Selling Stockholders
(i) This Agreement has been duly executed and delivered on behalf of such Selling Stockholder;
(ii) The Power of Attorney and Custody Agreement have been duly executed and delivered by such
Selling Stockholder, and constitute the legal, valid and binding obligations of such Selling
Stockholder, enforceable against each of the Selling Stockholder in accordance with their
respective terms;
(iii) The performance by ARC Acquisition Co., L.L.C. of its obligations under its Custody
Agreement, its Power of Attorney and the Agreement, including the sale of the Shares to be sold by
it, will not (i) violate its Limited Liability Company Agreement, (ii) violate any law, rule or
regulation applicable to it (except that such counsel express no opinion with respect to the
securities and blue sky laws of the various states), (iii) violate any judgment, injunction, order
or decree which is listed on its certificate attached to the opinion letter or (iv) breach or
result in a default under any indenture, mortgage, instrument or agreement which is listed on its
certificate attached to the opinion letter;
(iv) The performance by CHS Associates IV of its obligations under its Custody Agreement, its
Power of Attorney and the Agreement, including the sale of the Shares to be sold by it, will not
(i) violate its Partnership Agreement, (ii) violate any law, rule or regulation applicable to it
(except that such counsel express no opinion with respect to the securities and blue sky laws of
the various states), (iii) violate any judgment, injunction, order or decree which is listed on its
certificate attached to the opinion letter or (iv) breach or result in a default under any
indenture, mortgage, instrument or agreement which is listed on its certificate attached to the
opinion letter;
(v) The performance by ARC Acquisition Co., L.L.C. and CHS Associates IV of their respective
obligations under this Agreement does not require any consent or approval of any nature from, or
filing with, any governmental authority of the State of Illinois or the United States of America
under any law, regulation or rule applicable to them (except that such counsel express no opinion
with respect to the securities and blue sky laws of the various states), under any judgment,
injunction, order or decree which is listed on the certificates attached to the opinion letter or
under the Delaware Limited Liability Company Act or the Delaware Revised Uniform Partnership Act;
(vi) The performance by Xxxxx Xxxxx of her obligations under her Custody Agreement, her Power
of Attorney and the Agreement does not (i) require any consent or approval of any nature from, or
filing with, any governmental authority of the State of Illinois or the United States of America
under any law, regulation or rule applicable to Xxxxx Xxxxx (except that such counsel express no
opinion with respect to the securities and blue sky laws of the various states), (ii) violate any
judgment, injunction, order or decree which is listed on the certificate of Xxxxx Xxxxx
attached to the opinion letter or (iii) breach or result in a default under
A-5
any indenture, mortgage, instrument or agreement which is listed on the certificate of Xxxxx Xxxxx attached to the
opinion letter; and
(vii) An action based on an adverse claim to the financial asset consisting of the Shares sold
by such Selling Shareholder deposited in or held by DTC, whether such action is framed in
conversion, replevin, constructive trust, equitable lien, or other theory, may not be asserted
successfully against X.X. Xxxxxx Securities Inc. assuming that X.X. Xxxxxx Securities Inc.
acquires security entitlements with respect to such Shares from DTC and none of X.X. Xxxxxx
Securities Inc. or any Underwriter has notice of any adverse claims with respect to such financial
asset.
A-6
Annex A(iii)
Subject Matter of Opinion of Xxxxxx, Xxxxxxxx, Marcus, Xxxxxx & Xxxx, LLP,
as Counsel for Certain Selling Stockholders
as Counsel for Certain Selling Stockholders
(i) A Power of Attorney, if applicable, and a Custody Agreement have been duly authorized,
executed and delivered by such Selling Stockholder and constitute valid and binding agreements of
such Selling Stockholder in accordance with their terms;
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder; and the sale of the Shares to be sold by such Selling Stockholder hereunder
and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the
Power of Attorney, if applicable, and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default under, any statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to
which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which
any of the property or assets of such Selling Stockholder is subject, nor will such action result
in any violation of the provisions of the charter or by-laws or similar organizational documents,
as applicable, of such Selling Stockholder or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over such Selling Stockholder or
the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or governmental agency or body
is required for the consummation of the transactions contemplated by this Agreement in connection
with the Shares to be sold by such Selling Stockholder hereunder, except such as have been obtained
under the Securities Act and such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the Underwriters;
(iv) Immediately prior to such Closing Date or Additional Closing date, as the case may be,
such Selling Stockholder had good and valid title to the Shares to be sold at such Closing Date or
Additional Closing Date, as the case may be, by such Selling Stockholder under this Agreement, free
and clear of all liens, encumbrances, equities or claims, and full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; and
(v) Good and valid title to such Shares, free and clear of all liens, encumbrances, equities
or claims, has been transferred to each of the several Underwriters who have purchased such Shares
in good faith and without notice of any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial Code.
In rendering the opinion in paragraph (iv), such counsel may rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of, and liens, encumbrances,
equities or claims on, the Shares sold by such Selling Stockholder, provided that such
counsel shall state that they believe that both you and they are justified in relying upon such
certificate.
X-0
Xxxxx X(x)
Xxxx-Xxxxxxx Xxxxxxxxxx
Xxxx
X-0
Annex B(ii)
Term Sheet/Pricing Information
Form of Term Sheet:
None
Pricing Information:
The price to the public and the underwriting discount set forth on the cover of the Prospectus.
B-2
Annex C
Significant Subsidiaries
American Reprographics Company, L.L.C.
ARC Acquisition Corporation
OCB, LLC
Xxxxxxx’x, Ltd.
C-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
_________, 2007
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX, SACHS & CO.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:
American Reprographics Company — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with American Reprographics
Company, a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule I to the Underwriting Agreement (the
“Underwriters”) of certain shares of Common Stock, par value $.001 per share (the “Common Stock”),
of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc. and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, the undersigned will not,
during the period ending 90 days after the date of the prospectus relating to the Public Offering
(the “Prospectus”), (1) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any
option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (including without limitation, Common Stock which may be deemed to be beneficially
owned by the undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission and securities which may be issued upon exercise of a stock option or warrant)
or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of
X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, the undersigned may transfer the undersigned’s Securities (i)
as a bona fide gift or gifts, provided that the donee or donees thereof 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, (iii) to the extent they are
acquired in open market transactions after the Public Offering, provided that any such transfer is
not required to be reported under Section 16 of the Securities Exchange Act of 1934, as amended, or
(iv) to the Underwriters pursuant to the Underwriting Agreement. For purposes of this Letter
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 an
entity, the entity may transfer the capital stock of the Company to any wholly-owned subsidiary of
such entity or to such entity’s stockholders, members or partners; 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 Letter Agreement and there shall be no further transfer of such
capital stock except in accordance with this Letter Agreement, and provided further that any such
transfer shall not involve a disposition for value.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the Common
Stock to be sold thereunder, the undersigned shall be released from all obligations under this
Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
Very truly yours, [NAME OF STOCKHOLDER] |
||||
By: | _______________________ | |||
Name: | ||||
Title: | ||||