3,536,000 Shares ACCO BRANDS CORPORATION Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
3,536,000 Shares
ACCO BRANDS CORPORATION
Common Stock
September , 2006
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Deutsche Bank Securities Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. The securityholders listed in Schedule B hereto (the “Selling
Securityholders”) propose severally to sell 3,536,000 shares (“Firm Stock”) of common stock, $0.01
par value per share (“Common Stock”), of ACCO Brands Corporation, a Delaware corporation
(“Company”), and also propose to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 530,400 additional shares (“Optional Stock”) of the Common Stock as set
forth below. The Firm Stock and the Optional Stock are herein collectively called the “Offered
Securities.” The Company and the Selling Securityholders hereby agree with the several
Underwriters named in Schedule A hereto (“Underwriters”) as follows:
2. Representations and Warranties of the Company and the Selling Securityholders. (a) The
Company represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-137333), including a prospectus, relating to the
Offered Securities has been filed with the Securities and Exchange Commission (“Commission”)
and has become effective. “Registration Statement” as of any time means such registration
statement in the form then filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and any information in a prospectus or prospectus
supplement deemed or retroactively deemed to be a part thereof pursuant to Rule 430B (“Rule
430B”) or 430C (“Rule 430C”) under the Securities Act of 1933 (“Act”) that has not been
superseded or modified. “Registration Statement” without reference to a time means the
Registration Statement as of the time of the first contract of sale for the Offered
Securities, which time shall be considered the
“Effective Date” of the Registration
Statement relating to the Offered Securities. For
purposes of this definition, information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the Registration Statement as of the time
specified in Rule 430B.
“Statutory Prospectus” as of any time means the prospectus relating to the Offered
Securities that is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein. For purposes of this definition,
information contained in a form of prospectus (including a prospectus supplement) that is
deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall
be considered to be included in the Statutory Prospectus only as of the actual time that
form of prospectus (including a prospectus supplement) is filed with the Commission pursuant
to Rule 424(b) (“Rule 424(b)”) under the Act. “Prospectus” means the Statutory Prospectus
that discloses the public offering price and other final terms of the Offered Securities and
otherwise satisfies Section 10(a) of the Act.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 (“Rule 433”) under the Act, relating to the Offered Securities in the
form filed or required to be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule 433(g). “General Use Issuer
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for
general distribution to prospective investors, as evidenced by its being specified in
Schedule C to this Agreement. “Limited Use Issuer Free Writing Prospectus” means any Issuer
Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Applicable Time” means p.m. (Eastern time) on the date of this Agreement or such
other time as may be agreed to by the parties hereto.
(ii) At the time the Registration Statement initially became effective, at the time of
each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether by post-effective amendment, incorporated report or form of prospectus) and on the
Effective Date relating to the Offered Securities, the Registration Statement conformed and
will conform in all respects to the requirements of the Act and the rules and regulations of
the Commission (“Rules and Regulations”) and did not and will not include any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. On the date of this
Agreement, the Registration Statement and the Prospectus each conform in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such documents
includes any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 8(c) hereof.
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(iii) (A)(1) At the time of initial filing of the Registration Statement, (2) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 or form
of prospectus), and (3) at the time the Company or any person acting on its behalf (within
the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to
the Offered Securities in reliance on the exemption of Rule 163 under the Act, the Company
was a “well known seasoned issuer” as defined in Rule 405 (“Rule 405”) under the Act,
including not having been an “ineligible issuer” as defined in Rule 405.
(B) The Registration Statement is an “automatic shelf registration statement,” as
defined in Rule 405, that initially became effective within three years of the date of this
Agreement. If immediately prior to the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Offered Securities remain
unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has
not already done so and is eligible to do so, a new automatic shelf registration statement
relating to the Offered Securities, in a form satisfactory to the Representatives. If the
Company is no longer eligible to file an automatic shelf registration statement, the Company
will prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Offered Securities, in a form satisfactory to the
Representatives, and will use its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will take all
other action necessary or appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the expired registration statement relating to the
Offered Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case
may be.
(C) The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) (“Rule 401(g)(2)”) under the Act objecting to use of the automatic shelf
registration statement form. If at any time when Offered Securities remain unsold by the
Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (i) promptly notify the Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Offered Securities,
in a form satisfactory to the Representatives, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared effective as soon as
practicable, and (iv) promptly notify the Representatives of such effectiveness. The
Company will take all other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(D) The Company has paid or shall pay the required Commission filing fees relating to
the Offered Securities within the time required by Rule 456(b)(1) under the Act
3
without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under
the Act.
(iv) (A) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Offered Securities and (B) at the date of this Agreement,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (x)
the Company or any other subsidiary in the preceding three years not having been convicted
of a felony or misdemeanor or having been made the subject of a judicial or administrative
decree or order as described in Rule 405 and (y) the Company in the preceding three years
not having been the subject of a bankruptcy petition or insolvency or similar proceeding,
not having had a registration statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under Section 8A of the Act in connection
with the offering of the Offered Securities, all as described in Rule 405.
(v) As of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus and the
documents listed on and disclosures contained in Schedule D hereto, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from any prospectus included in the Registration Statement or any Issuer
Free Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically 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 Section 8(c) hereof.
(vi) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities or until
any earlier date that the Company notified or notifies the Representatives as described in
the next sentence, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in the Registration
Statement. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, (i) the Company has promptly notified or will promptly notify the
Representatives and (ii) the
Company has promptly amended or will promptly amend or supplement such Issuer Free
Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free
4
Writing Prospectus in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives specifically 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 Section 8(c) hereof.
(vii) The Company has been duly incorporated and is an existing 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 General Disclosure
Package; and the Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure to be so
qualified or in good standing would not individually or in the aggregate have a material
adverse effect on the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(viii) Set forth on Schedule E hereto is a complete list of all “significant
subsidiaries” (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated under
the Act) of the Company that satisfy the test set forth in Rule 1-02(w) of Regulation S-X on
an individual basis (the “Individual Significant Subsidiaries”) and all other subsidiaries
of the Company that satisfy the test set forth in Rule 1-02(w) of Regulation S-X on an
aggregate basis (the “Aggregate Significant Subsidiaries” and, together with the Individual
Significant Subsidiaries, the “Significant Subsidiaries”). Other than the Significant
Subsidiaries, there are no other subsidiaries of the Company that, individually or in the
aggregate, are “significant subsidiaries” (as such term is defined in Rule 1-02(w) of
Regulation S-X promulgated under the Act). Other than the Individual Significant
Subsidiaries, there are no other subsidiaries of the Company that individually would
constitute “significant subsidiaries” (as such term is defined in Rule 1-02(w) of Regulation
S-X promulgated under the Act, substituting 6% for the 10% threshold contained in such
rule).
(ix) Each of the Significant Subsidiaries has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and each Significant Subsidiary of the Company
is duly qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified or in good standing
would not individually or in the aggregate have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Significant Subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable; and, except as
disclosed in the General Disclosure Package, the capital stock of each Significant
Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(x) The Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock of the
5
Company
are validly issued, fully paid and nonassessable and conform to the information in the
General Disclosure Package and to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect to its Common Stock.
(xi) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person that would give rise to a
valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with the sale of the Offered Securities.
(xii) Other than the Registration Rights Agreement dated as of March 15, 2005 between
the Company and Lane Industries, Inc. (the “Registration Rights Agreement”), there are no
contracts, agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(xiii) The Offered Securities have been approved for listing on the New York Stock
Exchange, subject to notice of issuance.
(xiv) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this Agreement in connection with
the sale of the Offered Securities, except such as have been obtained and made under the Act
and such as may be required under state securities laws.
(xv) The execution, delivery and performance of this Agreement and the sale of the
Offered Securities will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or any of their properties, (ii) any
agreement or instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or (iii) the charter or by-laws of the Company or any
such subsidiary, except, in the case of clauses (i) and (ii) above for such breaches,
violations or defaults as would not result in a Material Adverse Effect.
(xvi) This Agreement has been duly authorized, executed and delivered by the Company.
(xvii) Except as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all material real properties and all other
material properties and assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially interfere with the
6
use
made or to be made thereof by them; and except as disclosed in the General Disclosure
Package, the Company and its subsidiaries hold any material leased real or personal property
under valid and enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(xviii) The Company and its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xix) No labor dispute with the employees of the Company or any subsidiary exists or,
to the knowledge of the Company, is imminent that might have a Material Adverse Effect.
(xx) The Company and its subsidiaries own, possess or can acquire on reasonable terms
sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses,
approvals, trade secrets, inventions, technology, know-how and other intellectual property
and similar rights, including registrations and applications for registration thereof
(collectively, “Intellectual Property Rights”) necessary or material to the conduct of the
business now conducted or proposed in the General Disclosure Package to be conducted by
them, and the expected expiration of any such Intellectual Property Rights would not,
individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in
the General Disclosure Package (i) there are no rights of third parties to any of the
Intellectual Property Rights owned by the Company or its subsidiaries; (ii) there is no
material infringement, misappropriation, breach, default or other violation, or the
occurrence of any event that with notice or the passage of time would constitute any of the
foregoing, by the Company, its subsidiaries or, to the knowledge of the Company, third
parties of any of the Intellectual Property Rights of the Company or its subsidiaries; (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 subsidiary’s rights in or to, or the
violation of any of the terms of, any of their Intellectual Property Rights, and the Company
is unaware of any facts which would form a reasonable basis for any such claim; (iv) there
is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim
by others challenging the validity, enforceability or scope of any such Intellectual
Property Rights, and the Company is unaware of any facts which would form a reasonable basis
for any such claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or
any subsidiary infringes, misappropriates or otherwise violates or conflicts with any
Intellectual Property Rights or other proprietary rights of others and the Company is
unaware of any other fact which would form a reasonable basis for any such claim; and (vi)
none of the Intellectual Property Rights used by the Company or its subsidiaries in their
businesses has been obtained or is being used by the Company or its subsidiaries in
violation of any contractual obligation binding on the Company or any of its subsidiaries in
violation of the rights of any persons, except in each case covered by clauses (i) – (vi)
such as would
7
not, if determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, have a Material Adverse Effect.
(xxi) Except as disclosed in the General Disclosure Package, (a)(i) neither the Company
nor any of its subsidiaries is in violation of, or has any liability under, any federal,
state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other requirement
or rule of law (including common law), or decision or order of any domestic or foreign
governmental agency, governmental body or court, relating to pollution, to the use,
handling, transportation, treatment, storage, discharge, disposal or release of Hazardous
Substances, to the protection or restoration of the environment or natural resources
(including biota), to health and safety including as such relates to exposure to Hazardous
Substances, and to natural resource damages (collectively, “Environmental Laws”), (ii)
neither the Company nor any of its subsidiaries owns, occupies, operates or uses any real
property contaminated with Hazardous Substances, (iii) neither the Company nor any of its
subsidiaries is conducting or funding any investigation, remediation, remedial action or
monitoring of actual or suspected Hazardous Substances in the environment, (iv) neither the
Company nor any of its subsidiaries is liable or allegedly liable for any release or
threatened release of Hazardous Substances, including at any off-site treatment, storage or
disposal site, (v) neither the Company nor any of its subsidiaries is subject to any claim
by any governmental agency or governmental body or person relating to Environmental Laws or
Hazardous Substances and (vi) the Company and its subsidiaries have received and are in
compliance with all, and have no liability under any, permits, licenses, authorizations,
identification numbers or other approvals required under applicable Environmental Laws to
conduct their respective businesses, except in each case covered by clauses (i) – (vi) such
as would not individually or in the aggregate have a Material Adverse Effect; (b) to the
Company’s knowledge there are no facts or circumstances that would reasonably be expected to
result in a violation of, liability under, or claim pursuant to any Environmental Law that
would have a Material Adverse Effect; (c) to the Company’s knowledge there are no
requirements proposed for adoption or implementation under any Environmental Law that would
reasonably be expected to have a Material Adverse Effect; and (d) the Company has reasonably
concluded that such Environmental Laws are not reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect. For purposes of this subsection “Hazardous
Substances” means (A) petroleum and petroleum products, by-products or breakdown products,
radioactive materials, asbestos-containing materials, polychlorinated biphenyls and mold,
and (B) any other chemical, material or substance defined or regulated as toxic or hazardous
or as a pollutant, contaminant or waste under Environmental Laws.
(xxii) Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the sale of the
8
Offered Securities; and no such actions, suits or proceedings are threatened or, to the
Company’s knowledge, contemplated.
(xxiii) The financial statements included in the Registration Statement and the General
Disclosure Package present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the General Disclosure Package, such
financial statements have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements included in the
Registration Statement and the General Disclosure Package provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xxiv) Except as disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General Disclosure Package there has
been no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the General Disclosure Package, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxv) The Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files reports with the Commission
on the Electronic Data Gathering, Analysis, and Retrieval (XXXXX) system.
(xxvi) The Company is not an “investment company” as defined in the Investment Company
Act of 1940.
(xxvii) The Company (A) makes and keeps accurate books and records and (B) maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (w)
transactions are executed in accordance with management’s general or specific
authorizations, (x) transactions are recorded as necessary to permit preparation of the
Company’s financial statements in conformity with accounting principles generally
accepted in the United States and to maintain accountability for its assets, (y) access to
the Company’s assets is permitted only in accordance with management’s general or specific
authorization and (z) the recorded accountability for the Company’s assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
9
(xxviii) The Company will be in compliance, in all material respects, with the
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the applicable rules and
regulations thereunder upon the applicability of such provisions, rules or regulations, as
the case may be, to the Company.
(xxix) Each of the Company, its subsidiaries, its affiliates and any of their
respective officers, directors, supervisors, managers, agents, or employees has not
violated, and its participation in the offering will not violate, any of the following laws:
(a) anti-bribery laws, including, but not limited to, any applicable law, rule or regulation
of any locality, including, but not limited to any law, rule or regulation promulgated to
implement the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, signed December 17, 1997, including the U.S. Foreign
Corrupt Practices Act of 1977 or any other law, rule or regulation of similar purpose and
scope, (b) anti-money laundering laws, including, but not limited to, applicable federal,
state, international, foreign or other laws, regulations or government guidance regarding
anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and
1957, the Patriot Act, the Bank Secrecy Act and international anti-money laundering
principals or procedures by an intergovernmental group or organization, such as the
Financial Action Task Force on Money Laundering, of which the United States is a member and
with which designation the United States representative to the group or organization
continues to concur, all as amended, and any executive order, directive or regulation
pursuant to the authority of any of the foregoing, or any orders or licenses issued
thereunder or (c) laws and regulations imposing U.S. economic sanctions measures, including,
but not limited to, the International Emergency Economic Powers Act, the Trading with the
Enemy Act, the United Nations Participation Act and the Syria Accountability and Lebanese
Sovereignty Act, all as amended, and any executive order, directive or regulation pursuant
to the authority of any of the foregoing, including the regulations of the United States
Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders
or licenses issued thereunder, except in each case for matters that would not, individually
or in the aggregate, result in a Material Adverse Effect. Further, no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any subsidiary of the Company with respect to any of the
foregoing laws, rules or regulations is pending or, to the knowledge of the Company,
threatened.
(xxx) The Company and each subsidiary of the Company is in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency,
except where any failure to be in compliance would not, individually or in the aggregate,
have a Material Adverse Effect.
(xxxi) None of the Company, any subsidiary of the Company or any director, officer,
agent, employee or affiliate of the Company or any subsidiary of the Company is
10
currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury.
(xxxii) The Company and its subsidiaries have filed all federal, state, local and
non-U.S. tax returns that are required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not have a Material Adverse
Effect); and, except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or penalties) required to
be paid by them, except for any such taxes, assessments, fines or penalties currently being
contested in good faith or as would not, individually or in the aggregate, have a Material
Adverse Effect.
(xxxiii) The Company and its subsidiaries are insured by insurers with appropriately
rated claims paying abilities against such losses and risks and in such amounts as are
prudent and customary for the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or
their respective businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; and there are no claims by the Company or any of
its subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; neither the Company nor
any such subsidiary has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect, except as set forth in or contemplated
in the General Disclosure Package.
(b) Each Selling Securityholder severally represents and warrants to, and agrees with,
the several Underwriters that:
(i) Such Selling Securityholder has and on the Closing Date hereinafter mentioned will
have valid and unencumbered title to the Offered Securities to be delivered by such Selling
Securityholder on the Closing Date and full right, power and authority to enter into this
Agreement, the power of attorney entered into in connection with this Agreement,
substantially in the form of Exhibit 1 hereto (the “Power of Attorney” and, together
with all other similar agreements executed by the other Selling Securityholders, the “Powers
of Attorney”) and to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Securityholder on the Closing Date under this Agreement; and upon
the
delivery of and payment for the Offered Securities on the Closing Date under this Agreement
the several Underwriters will acquire valid and unencumbered title to the Offered Securities
to be delivered by such Selling Securityholder on the Closing Date.
(ii) At the time the Registration Statement initially became effective, at the time of
each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether
11
by post-effective amendment, incorporated report or form of prospectus) and on the
Effective Date relating to the Offered Securities, the Registration Statement conformed and
will conform in all respects to the requirements of the Act and the Rules and Regulations
and did not and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading. On the date of this Agreement, the Registration Statement and the
Prospectus each conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary to make the
statements therein not misleading. Notwithstanding the foregoing, the representation and
warranty in this Section 2(b)(ii) shall apply only to the extent that any statements in or
omissions from the Registration Statement or Prospectus are made in reliance upon and in
conformity with written information furnished to the Company by such Selling Securityholder
specifically for use therein; it being understood that the only such information furnished
in writing to the Company by such Selling Securityholder specifically for use in the
Registration Statement or the Prospectus is that information described in Section 8(b) of
this Agreement.
(iii) As of the Applicable Time, neither (i) the General Disclosure Package, nor (ii)
any individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the representation and warranty in this Section 2(b)(iii) shall apply only to the
extent that any statements in or omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus are made in reliance upon and in conformity
with written information furnished to the Company by such Selling Securityholder
specifically for use therein; it being understood that the only such information furnished
in writing to the Company by such Selling Securityholder specifically for use in the
Registration Statement or any Issuer Free Writing Prospectus is that information described
in Section 8(b) of this Agreement.
(iv) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities or until
any earlier date that such Selling Securityholder notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing
Prospectus conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, (i) such Selling Securityholder has promptly notified or will promptly notify
the Representatives and (ii) such Selling Securityholder has caused or will cause the
Company promptly to amend or supplement
12
such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. Notwithstanding the foregoing, the
representation and warranty in this Section 2(b)(iv) shall apply only to the extent that any
statements in or omissions from any Issuer Free Writing Prospectus are made in reliance upon
and in conformity with written information furnished to the Company by such Selling
Securityholder specifically for use therein; it being understood that the only such
information furnished in writing to the Company by such Selling Securityholder specifically
for use in any Issuer Free Writing Prospectus is that information described in Section 8(b)
of this Agreement.
(v) The sale of the Firm Stock and the Optional Stock by such Selling Securityholder
pursuant hereto is not prompted by any material or non-public information concerning the
Company or any of its subsidiaries which is not set forth in the Registration Statement, the
General Disclosure Package and the Prospectus or the documents incorporated by reference
therein. The information pertaining to such Selling Securityholder and its ownership of
Common Stock under the caption “Principal and Selling Stockholders” in the Registration
Statement and the Prospectus (and any similar section or information contained in the
General Disclosure Package) is complete and accurate in all material respects.
(vi) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between such Selling Securityholder and any person that would
give rise to a valid claim against such Selling Securityholder or any Underwriter for a
brokerage commission, finder’s fee or other like payment in connection with the sale of the
Offered Securities.
(vii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by any Selling
Securityholder for the consummation of the transactions contemplated by this Agreement or
the Powers of Attorney in connection with the sale of the Offered Securities sold by the
Selling Securityholders, except such as have been obtained and made under the Act and such
as may be required under state securities laws.
(viii) The execution, delivery and performance of this Agreement and the Power of
Attorney and the consummation of the transactions herein contemplated will not result in a
breach or violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency or body or any court
having jurisdiction over such Selling Securityholder or any of its properties or any
agreement or instrument to which such Selling Securityholder is a party or by which such
Selling Securityholder is bound or to which any of the properties of such Selling
Securityholder is subject, the charter or by-laws of such Selling Securityholder that is a
corporation or the constituent documents of such Selling Securityholder that is not a
natural person or a corporation.
(ix) If such Selling Securityholder is not an individual or an estate, such Selling
Securityholder is not required to be registered as and, after giving effect to the offering
13
and sale of the Offered Securities and the application of the proceeds thereof as described
in the Prospectus, will not be required to be registered as an “investment company” as
defined in the Investment Company Act of 1940.
(x) Such Selling Securityholder has duly and irrevocably executed and delivered the
Power of Attorney appointing Xxxxx X. Xxxx and Xxxxxx Xxxxxxxx as attorneys-in-fact (the
“Attorneys-in-Fact”), with full power of substitution, and with full authority (exercisable
by any one or more of them) to execute and deliver this Agreement and to take such other
action as may be necessary or desirable to carry out the provisions hereof on behalf of such
Selling Securityholder.
(xi) The Power of Attorney with respect to such Selling Securityholder has been duly
authorized, executed and delivered by such Selling Securityholder and constitutes a valid
and legally binding obligation of such Selling Securityholder enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
(xii) This Agreement has been duly authorized, executed and delivered by or on behalf
of such Selling Securityholder.
(c) Selling Securityholder LED II, LLC represents and warrants to, and agrees with, the
several Underwriters that:
(i) Without having undertaken to determine independently the accuracy or completeness
of either the representations and warranties of the Company contained herein or the
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus, such Selling Securityholder has no reason to believe that the representations
and warranties of the Company contained in Section 2(a) of this Agreement are not true and
correct, and such Selling Securityholder is familiar with the Registration Statement, the
General Disclosure Package and the Prospectus and, without having undertaken to make an
independent determination, has no knowledge of any material fact, condition or information
with respect to the Company or any of its subsidiaries or their respective operations not
disclosed in the Registration Statement which has materially adversely affected or could
reasonably be expected to materially adversely affect the business of the Company or any of
its subsidiaries.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, each Selling
Securityholder agrees to sell the number of shares of the Firm Stock set forth opposite its name in
Schedule B hereto, severally and not jointly, to the several Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling Securityholders, at a
purchase price of $ per share, the respective number of shares of Firm Stock set forth
opposite the names of the Underwriters in Schedule A hereto.
14
The Selling Securityholders will deliver the Firm Stock to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price by the Underwriters in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of LED II, LLC at 10:00 A.M., New York time, on September ,
2006, or at such other time not later than seven full business days thereafter as the
Representatives, the Company and the Selling Securityholders determine, such time being herein
referred to as the “First Closing Date.” For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the First Closing Date (if later than the otherwise applicable settlement date) shall
be the settlement date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering.
In addition, upon written notice from the Representatives given to the Company and LED II, LLC
not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase all
or less than all of the Optional Stock at the purchase price per share to be paid for the Firm
Stock. LED II, LLC grants to the Underwriters an option to purchase the number of shares of
Optional Stock set forth opposite its name in Schedule B hereto and agrees to sell such Optional
Stock to the several Underwriters as specified in such notice, and the Underwriters agree,
severally and not jointly, to purchase such Optional Stock. Such Optional Stock shall be purchased
for the account of each Underwriter in the same proportion as the number of shares of Firm Stock
set forth opposite such Underwriter’s name bears to the total number of shares of Firm Stock
(subject to adjustment by the Representatives to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection with the sale of
the Firm Stock. No Optional Stock shall be sold or delivered unless the Firm Stock previously has
been, or simultaneously is, sold and delivered. The right to purchase the Optional Stock or any
portion thereof may be surrendered and terminated at any time upon notice by the Representatives to
the Company and LED II, LLC.
The time for the delivery of and payment for the Optional Stock, being herein referred to as
the “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and the
Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days after written
notice of election to purchase Optional Stock is given. The Selling Securityholders will deliver
the Optional Stock being purchased on the Optional Closing Date to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price therefor in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of LED II, LLC.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Securityholders. The Company agrees
with the several Underwriters and the Selling Securityholders that it will furnish to counsel for
the Underwriters one signed copy of the registration statement relating to the Offered Securities,
including all exhibits, in the form it became effective and of all amendments thereto and that, in
15
connection with each offering of Offered Securities, the Company and the Selling Securityholders,
as applicable, agree with the several Underwriters:
(a) The Company has filed or will file each Statutory Prospectus (including the
Prospectus) with the Commission pursuant to and in accordance with Rule 424(b)(1) (or, if
applicable and if consented to by the Representatives, subparagraph (4)) not later than the
second business day following the earlier of the date it is first used or the date of this
Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but
for the exemption in Rule 172 under the Act would be) required to be delivered under the Act
in connection with sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the Company promptly
will notify the Representatives of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the Representatives’
consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement
and satisfying the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any related
preliminary prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the Representatives
reasonably request. The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution.
16
(g) The Company will pay all expenses incident to the performance of its respective
obligations under this Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel for itself and reasonable fees and disbursements of one counsel for
the Selling Securityholders) in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any applicable filing fee incident to, the
review by the National Association of Securities Dealers, Inc. of the Offered Securities,
for any travel expenses of the Company’s officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with prospective purchasers of
the Offered Securities, for expenses incurred in preparing, printing and distributing each
Statutory Prospectus to the Underwriters and for expenses incurred in preparing, printing
and distributing any Issuer Free Writing Prospectuses to investors and prospective
investors. The Selling Securityholders shall pay any transfer taxes on the sale by the
Selling Securityholders of the Offered Securities to the Underwriters.
(h) For the period specified below (the “Lock-Up Period”), the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to the registration of, any
additional shares of Common Stock or securities convertible into or exchangeable or
exercisable for any shares of Common Stock, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or
in part, any of the economic consequences of ownership of Common Stock, whether any such
aforementioned transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing or enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of Credit Suisse
Securities (USA) LLC (“Credit Suisse”), except issuances by the Company of Common Stock
pursuant to the conversion or exchange of convertible or exchangeable securities or the
exercise of warrants or options, in each case outstanding on the date of this Agreement,
grants by the Company of employee stock options or other equity-based compensation pursuant
to the terms of a plan in effect on the date of this Agreement, issuances by the Company of
Common Stock pursuant to the exercise of such options or issuances of Common Stock pursuant
to the Company’s dividend reinvestment plan. The
initial Lock-Up Period will commence on the date hereof and will continue and include the
date 90 days after the date hereof or such earlier date that Credit Suisse consents to in
writing; provided, however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period beginning
on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date of release of the
earnings results or the occurrence of the material news or material event, as applicable,
unless Credit Suisse waives, in writing, such extension. The Company will provide the
Representatives with notice of any announcement
17
described in clause (2) of the preceding
sentence that gives rise to an extension of the Lock-Up Period.
(i) Each Selling Securityholder agrees that the Offered Securities are subject to the
interests of the Underwriters under this Agreement, that the arrangements made by the
Selling Securityholders in connection with this Agreement and the Powers of Attorney are to
that extent irrevocable, and that the obligations of the Selling Securityholders under this
Agreement and the Powers of Attorney shall not be terminated by operation of law, whether by
the death of any individual Selling Securityholder or the occurrence of any other event, or
in the case of a trust, by the death of any trustee or trustees or the termination of such
trust. If any individual Selling Securityholder or any such trustee or trustees should die,
or if any other such event should occur, or if any of such trusts should terminate, before
the delivery of the Offered Securities under this Agreement, the Offered Securities shall be
delivered in accordance with the terms and conditions of this Agreement and the Powers of
Attorney as if such death or other event or termination had not occurred, regardless of
whether or not the Attorneys-in-Fact shall have received notice of such death or other event
or termination.
(j) Each Selling Securityholder authorizes the Representatives to send a United States
Treasury Department Form 1099 to such Selling Securitytholder at the address provided in
Section 11 hereof on or before January 31 of the year following the date of this Agreement.
6. Free Writing Prospectuses. (a) The Company and each Selling Securityholder represents and
agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to the Offered Securities
that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representatives is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping.
(b) The Company consents to the use by any Underwriter of a free writing prospectus
that contains only (i)(x) information describing the preliminary terms of the Offered
Securities or their offering or (y) information that describes the final terms of the
Offered Securities or their offering and that is included in the documents listed on and
disclosures contained in Schedule D hereto or (ii) other information that is not “issuer
information,” as defined in Rule 433, it being understood that any such free writing
prospectus referred to in clauses (i) or (ii) above shall not be an Issuer Free Writing
Prospectus for purposes of this Agreement.
18
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Stock on the First Closing Date and the Optional
Stock to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling Securityholders herein,
to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company and the Selling Securityholders of their obligations hereunder and
to the following additional conditions precedent:
(a) On or prior to the date of this Agreement, the Representatives shall have received
letters, dated the date of delivery thereof, of PricewaterhouseCoopers LLC confirming that
they are independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect set forth in
Exhibit 2 and Exhibit 3 hereto. All financial statements and schedules
included in material incorporated by reference into the Prospectus or the General Disclosure
Package shall be deemed included in the Prospectus or the General Disclosure Package for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. No stop order suspending the
effectiveness of the Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to the knowledge of the
Company, any Selling Securityholder or any Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of the Company
and its subsidiaries taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any
debt securities or preferred stock of the Company by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the Company has been placed
on negative outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters including any Representatives, be
likely to prejudice materially the success of the proposed issue, sale or disposition of the
Offered Securities, whether in the primary market or in respect of dealings in the secondary
market; (iv) any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (v) any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or
19
New York authorities; (vii) any major disruption of settlements of securities or
clearance services in the United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including any Representatives, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxx, General Counsel of the Company, to the effect that:
(i) The Company is duly qualified to do business as a foreign corporation in
good standing in all jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where the failure
to be so qualified or in good standing would not individually or in the aggregate
have a Material Adverse Effect;
(ii) Each Significant Subsidiary of the Company that has been organized under the laws of any
jurisdiction of the United States has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and conduct
its business as described in the General Disclosure Package; and each Significant
Subsidiary of the Company that has been organized under the laws of any jurisdiction of the United
States is duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to be so
qualified or in good standing would not individually or in the aggregate have a
Material Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company that has been organized under the laws of any jurisdiction of the United
States has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as disclosed in the General
Disclosure Package, the capital stock of each Significant Subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens, encumbrances
and defects; and
(iii) Other than the Registration Rights Agreement, there are no contracts,
agreements or understandings known to such counsel between the Company and any
person granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the Company
under the Act.
(e) The Representatives shall have received an opinion, dated the Closing Date, of
Vedder, Price, Xxxxxxx & Kammholz, P.C., counsel for the Company, to the effect that:
20
(i) The Company has been duly incorporated and is an existing corporation in
good standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the General
Disclosure Package;
(ii) The Offered Securities and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly issued, are fully paid
and nonassessable, and conform to the information in the General Disclosure Package
and to the description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered Securities;
(iii) The Company is not an “investment company” as defined in the Investment
Company Act of 1940;
(iv) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the sale of the
Offered Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
(v) The execution, delivery and performance of this Agreement and the sale of
the Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any rule, regulation
or order of any governmental agency or body or any court having jurisdiction over
the Company or any subsidiary of the Company or any of their properties; any
agreement or instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject and which agreement or instrument
is required to be filed by the Company with the Commission pursuant to Item 601 of
Regulation S-K; or the charter or by-laws of the Company or any such subsidiary;
(vi) This Agreement has been duly authorized, executed and delivered by the
Company; and
(vii) The Registration Statement has become effective under the Act, the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under the Act, and
the Registration Statement, as of the Effective Date relating to the Offered
Securities, and the Prospectus, as of the date of this Agreement, and any amendment
or supplement thereto, as of its date, complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations (other than the
21
financial statements or other financial and statistical data derived therefrom, as
to which such counsel need express no opinion); such counsel have no reason to
believe that the Registration Statement or any amendment thereto, as of its
Effective Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, that the Prospectus, as of the date of this
Agreement or as of the Closing Date, or any amendment or supplement thereto, as of
its date or as of the Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or that the documents specified in a schedule to such counsel’s letter,
consisting of those included in the General Disclosure Package, as of the Applicable
Time and as of the Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; the descriptions of statutes, legal and governmental proceedings and
contracts and other documents in the Registration Statement and Prospectus under the
captions “Description of Capital Stock” and “Indemnification of Directors and
Officers” are accurate and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel need express
no opinion as to the financial statements or other financial and statistical data
derived therefrom contained in the Registration Statement or the Prospectus.
(f) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxx XxXxxxxx LLP, local counsel for the Company in the United Kingdom, with respect to
the due incorporation, good standing, corporate power and authority and
foreign qualifications of each Significant Subsidiary of the Company that has been organized under the laws of
any jurisdiction of the United Kingdom and to the effect that all of the issued and outstanding capital stock of each such Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable, in form and substance reasonably satisfactory to
the Representatives.
(g) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxxx Lawyers, local counsel for the Company in Australia, with respect to the due
incorporation, good standing, corporate power and authority and foreign qualifications of
each Significant Subsidiary of the Company that has been organized under the laws of any jurisdiction of
Australia and to the effect that all of the issued and outstanding capital stock of each such Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable, in form and substance reasonably satisfactory to the Representatives.
(h) The Representatives shall have received an opinion, dated the Closing Date, of
Sidley Austin LLP, counsel for the Selling Securityholders, to the effect that:
(i) With respect to any Selling Securityholder that is not an individual, such
Selling Securityholder is duly formed, validly existing and is in good standing
under the laws of its jurisdiction of organization;
22
(ii) Upon (a) payment of the consideration for the Offered Securities, (b)
registration of the transfer of the Offered Securities to the Underwriters in the
books and records of the Company in accordance with this Agreement and (c) book
entry recordation by The Depository Trust Company that the Offered Shares have been
credited to the Underwriters’ respective securities accounts, and assuming that each
Underwriter acquires its interest in the Offered Shares without notice of any
adverse claim to the Offered Shares as provided in the Uniform Commercial Code as in
effect in the State of New York, (A) the Underwriters will acquire a security
entitlement with respect to the Offered Securities and (B) no action based on any
adverse claim to such security entitlement may be asserted against such Underwriter;
(iii) To the knowledge of such counsel, no consent, approval, authorization or
other order or decree of, or filing with, any court, regulatory or governmental
agency or body of the United States having jurisdiction over the Selling
Securityholders is required under laws which in such counsel’s experience and
without independent examination are normally applicable to the transactions of the
type contemplated by this Agreement and the Powers of Attorney for the execution and
delivery of this Agreement or the Powers of Attorney by the Selling Securityholders
or the consummation of the transactions contemplated by this Agreement or the Powers
of Attorney by the Selling Securityholders, except such as have been obtained under
the Act and the Rules and Regulations thereunder, and such as may be required under
the state securities or blue sky laws of any other jurisdiction, including the
various states and the District of Columbia, in connection with the offer and sale
of the Offered Securities;
(iv) The execution and delivery of this Agreement and the Powers of Attorney
by the Selling Securityholders and the performance by the Selling Securityholders of
their respective obligations under this Agreement and the Powers of Attorney: (i)
does not violate any provisions of the certificate of formation or limited liability
company agreement of any Selling Securityholder that is not an individual; and (ii)
will not result in a violation of any statute, ordinance, order, regulation or rule
of any governmental agency or body (excluding state securities or blue sky laws or
any rules or regulations thereunder and any antifraud or similar laws, including
Section 10(b) under the Securities Exchange Act of 1934 or any Rules or Regulations
thereunder) or any agreement or instrument known to such counsel and listed on an
exhibit attached to such counsel’s opinion to which the Selling Securityholders or
any of the Selling Securityholders’ property is subject and, in each case, which in
such counsel’s experience and without independent examination are normally
applicable to the transactions of the type contemplated by this Agreement and the
Powers of Attorney;
(v) The Powers of Attorney with respect to each Selling Securityholder have
been duly authorized, if applicable, executed and delivered by such Selling
23
Securityholder and constitute a legally valid and binding obligation of each such Selling
Securityholder, enforceable against each such Selling Securityholder in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent conveyance or
similar laws affecting creditor’s rights or by general principles of equity (whether
enforceability is considered in a proceeding in equity or at law);
(vi) This Agreement has been duly authorized, if applicable, executed and
delivered by or on behalf of each Selling Securityholder; and
(vii) With respect to any Selling Securityholder that is not an individual or
an estate, such Selling Securityholder is not required to be registered, as of the
Applicable Time, and after giving effect to the offering and sale of the Offered
Securities and the application of proceeds thereof as described in the Prospectus,
will not be required to register, as an “investment company” within the meaning of
the Investment Company Act of 1940.
(i) The Representatives shall have received from Mayer, Brown, Xxxx & Maw LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities, the Registration
Statement, the General Disclosure Package, the Prospectus and other related matters as the
Representatives may require, and the Company and the Selling Securityholders shall have
furnished to such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(j) The Representatives shall have received a certificate, dated the Closing Date, of
the President or any Vice President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that, subsequent to the date of
the most recent financial statements in the General Disclosure Package, there has been no
material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as set forth in the
General Disclosure Package or as described in such certificate.
(k) The Representatives shall have received letters, dated the Closing Date, of
PricewaterhouseCoopers LLC which meet the requirements of subsection (a) of this Section and
the exhibits referenced therein, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
24
(l) On or prior to the date of this Agreement, the Representatives shall have received
lockup letters (i) from the executive officers and directors of the Company listed on
Schedule F hereto, substantially in the form of Xxxxxxx 0 xxxxxx, (xx) from each
entity listed on Schedule G hereto, substantially in the form of Exhibit 5 hereto,
(iii) from each entity listed on Schedule H hereto, substantially in the form of Exhibit
6 hereto, (iv) from each entity listed on Schedule I hereto, substantially in the form
of Exhibit 7 hereto and (v) from each Selling Securityholder listed on Schedule J
hereto, substantially in the form of Exhibit 8 hereto, and such lockup letters shall
be in full force and effect on the Closing Date.
(m) To avoid a 28% backup withholding tax, each Selling Securityholder shall have
properly completed, executed in duplicate and delivered to the Representatives and LED II,
LLC a substitute United States Treasury Department Form W-9 (or other applicable form or
statement specified by the United States Treasury Department regulations in lieu thereof).
(n) Each Selling Securityholder shall have properly completed, executed and delivered
a stock power to the Representatives or the applicable transfer agent with respect to the
Offered Securities and the signature of such Selling Stockholder on such stock power shall
be guaranteed by a bank, trust company, broker, dealer, municipal securities dealer,
government securities dealer or broker, credit union, a national securities exchange,
registered securities association or clearing agency, or a savings institution that is a
participant in a Securities Transfer Association recognized program or by a Medallion
Signature Guarantor.
(o)
The Representatives shall have received a fully executed copy of the
letter of direction from Selling Stockholder LED II, LLC to
Wilmington Trust Company that is countersigned by Xxxxxx X.X.
providing
that all liens, claims, security interests and other encumbrances held by Xxxxxx X.X., in
its capacity as administrative agent under that certain Amended and Restated Credit
Agreement, dated as of April 26, 2002, as amended, among Lane Industries, Inc., the
financial institutions parties thereto and Xxxxxx X.X. or otherwise, over the Offered
Securities are released.
The Company and the Selling Securityholders will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers and its affiliates and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement at any time, any Statutory Prospectus at
any time, the Prospectus or any Issuer Free Writing Prospectus, or
25
arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the Company specifically for
use therein by any (i) Underwriter through the Representatives, 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 or (ii) Selling Securityholder, if any.
(b) The Selling Securityholders, severally and not jointly, will indemnify and hold
harmless each Underwriter, its partners, members, directors officers and its affiliates and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in the
Registration Statement at any time, any Statutory Prospectus at any time, the Prospectus or
any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in
connection with
investigating or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Selling Securityholders will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically 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; and provided further the indemnity provided for in this paragraph (b) shall
apply only to the extent that any such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the applicable Selling Securityholder specifically
for use therein, it being understood and agreed that the only such information furnished by
any Selling Securityholder consists of that information regarding such Selling
Securityholder and its ownership of Common Stock set forth in the Registration Statement
and the Prospectus under the caption “Principal and Selling Stockholders”; and provided
further that the aggregate liability under this subsection of each Selling Securityholder
shall be limited to an amount equal to the aggregate gross proceeds after underwriting
commissions and discounts, but before expenses, to such Selling Securityholder from the
sale of Offered Securities sold by such Selling Securityholder hereunder.
26
(c) Each Underwriter will severally and not jointly indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act and each Selling Securityholder, against any
losses, claims, damages or liabilities to which the Company or any Selling Securityholder
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Registration
Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer
Free Writing Prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Securityholder in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being understood
and agreed 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 fourth paragraph under the caption
“Underwriting” and the information contained in the twelfth paragraph under the caption
“Underwriting” concerning stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids.
(d) Promptly after receipt by an indemnified party under this Section of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party under subsection (a), (b) or (c) above, notify
the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under
subsection (a), (b) or (c) above 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 party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under subsection
(a), (b) or (c) above. In case any such action is brought against any indemnified party
and it notifies an indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened action in respect of which any
indemnified
27
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above,
then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Securityholders on the one hand
and the Underwriters on the other from the offering of the Offered Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling Securityholders
on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the Company and
the Selling Securityholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Securityholders bear to the
total underwriting discounts and commissions received by the Underwriters. The relative
fault
shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, the Selling Securityholders or the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (e). Notwithstanding
the provisions of this subsection (e), (x) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission and (y) no
Selling Securityholder shall be required to contribute pursuant to this subsection (e) an
aggregate amount in excess of the amount by which the aggregate gross proceeds after
underwriting discounts and commissions but before expenses to such Selling Securityholder
from the sale of Offered Securities sold by such Selling Securityholder hereunder exceeds
the amount of any damages which such Selling Securityholder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to
28
contribute are several in proportion to their respective underwriting obligations and not
joint.
(f) The obligations of the Company and the Selling Securityholders under this Section
shall be in addition to any liability which the Company and the Selling Securityholders may
otherwise have and shall extend, upon the same terms and conditions, to each partner,
director and officer of, and each person, if any, who controls, any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
(g) Nothing contained in this Agreement shall be deemed to limit or affect any
provision of the Registration Rights Agreement, including, without limitation, the
indemnification and contribution provisions thereof as between the Company and the Selling
Securityholders.
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing
Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the
total number of shares of Offered Securities that the Underwriters are obligated to purchase on the
Closing Date, the Representatives may make arrangements satisfactory to the Company and the Selling
Securityholders for the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective commitments hereunder
to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase
on the Closing Date. If any Underwriter or Underwriters so default and the aggregate number of
shares of Offered Securities with respect to which such default or defaults occur exceeds 10% of
the total number of shares of Offered Securities that the Underwriters are obligated to purchase on
such Closing Date and arrangements satisfactory to the Representatives, the Company and the Selling
Securityholders for the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 10 (provided that if such
default occurs with respect to Optional Stock after the First Closing Date, this Agreement will not
terminate as to the Firm Stock or any Optional Stock purchased prior to such termination). As used
in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Securityholders, the
Company or its officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any Selling Securityholder, the
Company or
29
any of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Securityholders shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company, the Selling Securityholders and the Underwriters pursuant to
Section 8 shall remain in effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5 shall also remain
in effect. If the purchase of the Offered Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement pursuant to Section 9 or
the occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c),
the Company and the Selling Securityholders will, jointly and severally, reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to Representatives c/o Credit
Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD
and Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Equity Capital
Markets, Syndicate Desk, with a copy to Deutsche Bank Securities Inc. Attention General Counsel,
facsimile (000) 000-0000 or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx Xxxxx, Esq., or, if sent to the Selling Securityholders, will be mailed,
delivered or telegraphed and confirmed to the them at c/o Lane Industries, Inc., One Lane Center,
0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxx; provided, however, that
any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the Company,
the Selling Securityholders and the Underwriters and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
13. Representation of Underwriters and Selling Securityholders. The Representatives will act
for the several Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or severally will be
binding upon all the Underwriters. The Attorneys-in-Fact appointed to represent the Selling
Securityholders pursuant to the Powers of Attorney will act for the several Selling Securityholders
in connection with the transactions contemplated by this Agreement, and any action under this
Agreement taken by the Attorneys-in-Fact jointly or by any of them will be binding upon all the
Selling Securityholders.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
30
15. Absence of Fiduciary Relationship. The Company and the Selling Securityholders
acknowledge and agree that:
(a) the Underwriters have been retained solely to act as underwriters in connection
with the sale of Offered Securities and that no fiduciary, advisory or agency relationship
between the Company and the Selling Securityholders, on the one hand, and the Underwriters,
on the other, has been created in respect of any of the transactions contemplated by this
Agreement or the Prospectus, irrespective of whether the Underwriters have advised or is
advising the Company or the Selling Securityholders on other matters;
(b) the price of the Offered Securities set forth in this Agreement was established by
the Selling Securityholders following discussions and arms-length negotiations with the
Underwriters and the Selling Securityholders are capable of evaluating and understanding
and understand and accept the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) the Company and the Selling Securityholders have been advised that the
Underwriters and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and the Selling Securityholders and
that the Underwriters have no obligation to disclose such interests and transactions to
the Company or the Selling Securityholders by virtue of any fiduciary, advisory or agency
relationship; and
(d) the Company and the Selling Securityholders waive, to the fullest extent permitted
by law, any claims they may have against the Underwriters for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Underwriters shall have no liability
(whether direct or indirect) to the Company or the Selling Securityholders in respect of
such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company or the Selling Securityholders, including stockholders,
employees or creditors of the Company or the Selling Securityholders.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to principles of conflicts of laws.
The Company and the Selling Securityholders hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
31
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, the Selling Securityholders and the several Underwriters in
accordance with its terms.
Very truly yours,
ACCO Brands Corporation | ||||||||
By: | ||||||||
Title: | ||||||||
The Selling Securityholders Named In Schedule B To This Agreement |
||||||||
By: | ||||||||
Attorney-in-Fact |
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
confirmed and accepted as of the date first above
written.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
Representatives of the several
Underwriters
Credit Suisse Securities (USA) LLC | ||||||
By: | ||||||
Title: | ||||||
Deutsche Bank Securities Inc. | ||||||
By: | ||||||
Title: | ||||||
By: | ||||||
Title: |