Trinity Industries, Inc. Common Stock, par value $1.00 per share Underwriting Agreement
Exhibit 99.1
Trinity Industries, Inc.
Common Stock, par value $1.00 per share
March __, 2006
Ladies and Gentlemen:
TIC I, LLC and TIC II, LLC (together, the “Selling Stockholder”) propose, subject to the
terms and conditions stated herein, to sell to you (the “Underwriter”) an aggregate of 3,650,000
shares of Common Stock of Trinity Industries, Inc., a Delaware corporation (the “Company”), par
value $1.00 per share (the “Shares”).
1. (a) The Company represents and warrants to, and agrees with the Underwriter that:
(i) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333- ) in
respect of the Shares has been filed with the Securities and Exchange Commission (the
“Commission”); such registration statement and any post-effective amendment thereto became
effective on filing; and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for that purpose has been
initiated or, to the Company’s knowledge, threatened by the Commission and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to rule 401(g)(2) under the Act has been received by the Company
(the base prospectus filed as part of such registration statement, in the form in which it
has most recently been filed with the Commission on or prior to the date of this Agreement,
is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Shares filed with the Commission pursuant
to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various
parts of such registration statement, including all exhibits thereto and including any
prospectus supplement relating to the Shares that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are hereinafter collectively
called the “Registration Statement”; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section 1(a)(iii) hereof), is
hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to
the Shares, filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, is hereinafter called the “Prospectus”; any reference herein to
the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any
reference to any amendment or
supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the Shares
filed with the Commission pursuant to rule 424(b) under the Act and any documents filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated
by reference therein, in each case after the date of the Basic Prospectus, such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in the Registration
Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);
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(ii) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein or by the Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3;
(iii) For the purposes of this Agreement, the “Applicable Time” is ___:___m (Eastern
time) on the date of this Agreement. The Pricing Prospectus, as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule I(a) hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use therein;
(iv) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the
requirements
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of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly for use
therein; and no such documents were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of this Agreement and prior to
the execution of this Agreement, except as set forth on Schedule I(b) hereto;
(v) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to each part of
the Registration Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly for use therein
or by the Selling Stockholder expressly for use in the preparation of the answers therein to
Item 7 of Form S-3;
(vi) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, that, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on the general affairs, business,
management, liquidity, current or future financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”), otherwise than as set forth or contemplated in the Pricing Prospectus; and, since
the respective dates as of which information is given in the Registration Statement and the
Pricing Prospectus, there has not been any change in the capital stock (other than pursuant
to the Company’s equity benefit plans) or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change that would
have a Material Adverse Effect, otherwise than as set forth or contemplated in the Pricing
Prospectus;
(vii) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are described
in the Pricing Prospectus or such as do not materially affect the value of such property and
do not interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its subsidiaries,
except to the extent such
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interference
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(viii) The Company (A) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Pricing Prospectus, and (B) has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require such
qualification except in the case of clause (B) for such failure to be so qualified or in
good standing that would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and each “significant subsidiary” (as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Act, thereafter, a “Significant
Subsidiary”) of the Company that is a corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation; each Significant Subsidiary of the Company that is a limited liability
company has been duly formed and is validly existing as a limited liability company in good
standing under the laws of its jurisdiction of formation; and each Significant Subsidiary of
the Company that is a limited partnership has been duly formed and is validly existing as a
limited partnership in good standing under the laws of its jurisdiction of formation;
(ix) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and conform to the
“Description of Capital Stock” section contained in the Company’s Current Report on Form 8-K
dated November 30, 2004, incorporated by reference into the Prospectus; and all of the
issued shares of capital stock, all of the issued membership interests and all of the
limited liability partnership interests of each subsidiary of the Company have been duly and
validly authorized and issued, are, in the case of shares of capital stock, fully paid and
non-assessable and (except for directors’ qualifying shares and except as set forth in the
Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(x) The compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated (A) will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (B) will not result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or (C) will not result in any
violation of any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in the case of clauses (A) and (C) as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the sale of the Shares or the consummation by
the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such consents,
approvals,
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authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriter;
(xi) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or (B) in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except in the case of clause (B) as
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(xii) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Underwriting” and the statements set forth in the Company’s Current Report on Form
8-K dated November 30, 2004 under the caption “Description of Capital Stock”, insofar as
they purport to describe the provisions of the laws and documents referred to therein, are
accurate and complete in all material respects;
(xiii) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings (A) pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is the subject or
(B) to the best of the Company’s knowledge, threatened or contemplated by governmental
authorities or threatened by others which if determined adversely to the Company or any of
its subsidiaries would have, individually or in the aggregate, a Material Adverse Effect;
(xiv) The Company is not and, after giving effect to the offering and sale of the
Shares, will not be an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
(xv) (A) At each of the time of filing the Registration Statement, the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus), and 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 Shares in reliance on the exemption of Rule
163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405
under the Act; and (B) at the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2) under the Act) of the Shares, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(xvi) Ernst and Young LLP, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(xvii) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal control over financial reporting is
effective and the
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Company is not aware of any material weaknesses in its internal control
over financial reporting;
(xviii) Since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus, there has been no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting;
(xix) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by others within those entities;
and such disclosure controls and procedures are effective;
(xx) The Shares are listed on the New York Stock Exchange (the “Exchange”);
(xxi) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged;
(xxii) The Company and its subsidiaries have all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and have made all declarations and
filings with, all federal, state, local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease, license and
use their properties and assets and to conduct their business in the manner in which it is
described or contemplated in the Pricing Prospectus, with such exceptions as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and
(xxiii) There are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person granting such person the right to require the Company or
any of its subsidiaries to file a registration statement under the Act with respect to any
securities of the Company or any of its subsidiaries or to include any securities of the
Company or any of its subsidiaries with the Shares registered pursuant to the Registration
Statement, except as otherwise disclosed in the Pricing Prospectus.
(b) The Selling Stockholder represents and warrants to, and agrees with, the Underwriter and
the Company that:
(i) All consents, approvals, authorizations and orders necessary for the execution and
delivery by the Selling Stockholder of this Agreement and the Power of Attorney and the
Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be
sold by the Selling Stockholder hereunder, have been obtained; the Selling Stockholder has
full right, power and authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares hereunder;
(ii) The sale of the Shares to be sold by the Selling Stockholder hereunder and the
compliance by the Selling Stockholder with all of the provisions of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan
6
agreement or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject, nor will such action result in any violation of the
provisions of the limited liability company agreement or other governing instruments of the
Selling Stockholder, any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling Stockholder or its
property;
(iii) The Selling Stockholder has, and immediately prior to the Time of Delivery (as
defined in Section 4 hereof) will have, good and valid title to the Shares to be sold by
such Selling Stockholder hereunder, free and clear of all valid liens, encumbrances,
equities or claims;
(iv) Upon payment by the Underwriter for the Shares to be sold by the Selling
Stockholder as provided in this Agreement, delivery of such Shares, as directed by the
Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The
Depository Trust Company (“DTC”) in the State of New York, registration of such Shares in
the name of Cede or such other nominee and the crediting of such Shares on the records of
DTC to securities accounts of the Underwriter, assuming that neither DTC nor the Underwriter
has “notice of any adverse claim” (as such phrase is defined in Section 8-105 of the Uniform
Commercial Code, as amended and in effect in the State of New York on the date hereof (the
“UCC”) to such Shares, (A) DTC shall be a “protected purchaser” of such Shares within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriter
will acquire a valid security entitlement in respect of such Shares and (C) no action based
on any “adverse claim” (as defined in Section 8-102 of the UCC) to such Shares may be
asserted against the Underwriter with respect to such security entitlement (it being assumed
that for the purposes of this representation and warranty that when such payment, delivery
and crediting occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company’s share registry in
accordance with its Certificate of Incorporation, By-Laws and applicable law, (y) DTC will
be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and
(z) appropriate entries to the account(s) of the Underwriter on the records of DTC will have
been made pursuant to the UCC);
(v) During the period beginning from the date hereof and continuing to and including
the date 30 days after the date of the Prospectus, the Selling Stockholder will not directly
or indirectly, offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or exchangeable for,
or that represent the right to receive, stock or any such substantially similar securities,
without the Underwriter’s prior written consent. This restriction is expressly agreed to
preclude the Selling Stockholder from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a sale or
disposition of the Shares or other securities even if the Shares or other securities would
be disposed of by someone other than the Selling Stockholder. Such prohibited hedging or other transactions would include
without limitation any short sale or any purchase, sale or grant of any right (including
without limitation any put or call option) with respect to the Shares or other securities or
with respect to any security that includes, relates to, or derives any significant part of
its value from the Shares or other securities;
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(vi) The Selling Stockholder has obtained and delivered to the Underwriter executed
copies of an agreement from TCMC, Inc., substantially in the form of Annex 3 hereto, and
otherwise in form and substance satisfactory to the Underwriter;
(vii) The Selling Stockholder and its subsidiaries have not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Shares;
(viii) All information furnished in writing to the Company by the Selling Stockholder
expressly for use in the Registration Statement, the Pricing Prospectus, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto (which the parties hereto
agree consists, as of the date hereof, only of the information under the caption “Selling
Stockholder”) does not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of the applicable filing date as to
the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, contain 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;
(ix) In order to document the Underwriter’s compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, the Selling Stockholder will deliver to the
Underwriter prior to or at the Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof);
(x) Certificates in negotiable form representing all of the Shares to be sold by the
Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the
form heretofore furnished to the Underwriter (the “Custody Agreement”), duly executed and
delivered by the Selling Stockholder to American Stock Transfer & Trust Company, as
custodian (the “Custodian”), and the Selling Stockholder has duly executed and delivered a
Power of Attorney, in the form heretofore furnished to the Underwriter (the “Power of
Attorney”), appointing [Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx,] and each
of them, as the Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with
authority to execute and deliver this Agreement on behalf of the Selling Stockholder, to
determine the purchase price to be paid by the Underwriter to the Selling Stockholder as
provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by the
Selling Stockholder hereunder and otherwise to act on behalf of the Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody Agreement;
and
(xi) The Shares represented by the certificates held in custody for the Selling
Stockholder under the Custody Agreement are subject to the interests of the Underwriter
hereunder; the arrangements made by the Selling Stockholder for such custody, and the
appointment by the Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of the Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the dissolution of the Selling
Stockholder, or by the occurrence of any other event; if the Selling Stockholder should be
dissolved, or if any other such event should occur, before the delivery of the Shares
hereunder, certificates representing the Shares shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions of this Agreement and of the
Custody Agreement;
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and actions taken by the Attorneys-in-Fact pursuant to the Power of
Attorney shall be as valid as if such dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such dissolution or other event.
2. Subject to the terms and conditions herein set forth, the Selling Stockholder agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Selling Stockholder, the
Shares at a purchase price per share of $ .
3. Upon the release of the Shares, the Underwriter proposes to offer the Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by the Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Underwriter may request upon at
least two New York Business Days (as defined below) prior notice to the Selling Stockholder shall
be delivered by or on behalf of the Selling Stockholder to the Underwriter, through the facilities
of DTC, for the account of the Underwriter, against payment by or on behalf of the Underwriter of
the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified
by the Custodian to the Underwriter at least two New York Business Days in advance. The Company
will cause the certificates representing the Shares to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on March ___, 2006 or such other time
and date as the Underwriter and the Selling Stockholder may agree upon in writing. Such time and
date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross-receipt for the Shares and any additional
documents requested by the Underwriter pursuant to Section 7(m) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing
Location”), and the Shares will be delivered at the Designated Office, all at the Time of Delivery.
A meeting will be held at the Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by the Underwriter and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration Statement, the Basic
Prospectus or Prospectus prior to the Time of Delivery which shall be disapproved by
the Underwriter promptly after reasonable notice thereof; to advise the Underwriter,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file
promptly all other material required to be filed by the Company with the Commission pursuant
to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or
information statements required to
9
be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Shares; to advise the Underwriter, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus in respect of the Shares, or any
notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, promptly to use its best efforts to obtain the withdrawal
of such order; and in the event of any such issuance of a notice of objection, promptly to
take such steps including, without limitation, amending the Registration Statement or filing
a new registration statement, at its own expense, as may be necessary to permit offers and
sales of the Shares by the Underwriter (references herein to the Registration Statement
shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the
Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be disapproved by you
promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as the Underwriter may reasonably
request to qualify the Shares for offering and sale under the securities laws of such
jurisdictions as the Underwriter may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(d) Prior to 10:00 A.M., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriter with
written and electronic copies of the Prospectus in New York City in such quantities as the
Underwriter may reasonably request, and, if the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus in connection
with the
offering or sale of the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify the Underwriter and upon the Underwriter’s request to file such document and
to prepare and
10
furnish without charge to the Underwriter and to any dealer in securities as
many written and electronic copies as the Underwriter may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case the Underwriter is required to
deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) in connection with sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon the Underwriter’s request but at the expense of the
Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies
as the Underwriter may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including
the date 30 days after the date of the Prospectus, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than (i) pursuant to equity benefit plans
existing on, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement or (ii) any contract to sell up to an
aggregate of 5% of the Company’s outstanding stock (outstanding immediately after the
offering and sale of the Shares) issued (A) for cash in connection with any strategic
transaction that includes a commercial relationship involving the Company and other
entities, including joint ventures, or (B) in connection with the acquisition by the Company
of any businesses or products, provided that the purchasers or other persons to whom such
stock is issued in any transaction covered by clauses (A) or (B) agrees to be bound by the
restriction set forth in this Section 5(f)), without the Underwriter’s prior written
consent; provided that, notwithstanding the foregoing, the Company may enter into private
discussions or negotiations with respect to one or more issuances of Common Stock or
convertible securities, so long as the Company does not, during such 30-day period, (x)
issue, or enter into a binding agreement to issue, any such Common Stock or convertible
securities, or (y) make a public filing, or other public announcement, in respect
thereof. This restriction is expressly agreed to preclude the Company from
engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or
result in a sale or disposition of the Shares or other securities even if the Shares or
other securities would be disposed of by someone other than the Company. Such prohibited
hedging or other transactions would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or call option)
with respect to the Company’s shares or other securities or with respect to any security
that includes, relates to, or derives any significant part of its value from the Shares or
other securities;
(g) To furnish to its stockholders within the time periods applicable to the Company
after the end of each fiscal year an annual report (including a balance sheet and statements
of income, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries
11
certified by independent public accountants) and, within the time periods
applicable to the Company after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable detail;
(h) During a period of three years from the effective date of the Registration
Statement, to furnish to the Underwriter copies of all reports or other communications
(financial or other) furnished to stockholders and not publicly available on XXXXX, and to
deliver to the Underwriter as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and not publicly
available on XXXXX (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission);
(i) To use its best efforts to maintain the listing of the Shares on the Exchange;
(j) To pay the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) under the Act;
(k) Upon request of the Underwriter, to furnish, or cause to be furnished, to the
Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate
logo for use on the website, if any, operated by the Underwriter for the purpose of
facilitating the on-line offering of the Shares (the “License”); provided, however, that the
License shall be used solely for the purpose described above, is granted without any fee and
may not be assigned or transferred; and
(l) To remove any and all legends on the certificates for the Shares sold hereunder.
6. (a) The Company represents and agrees that, without the prior consent of the Underwriter,
it has not made and will not make any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act; the Underwriter represents and agrees
that, without the prior consent of the Company, it has not made and will not make any offer
relating to the Shares that would constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and the Underwriter is listed on
Schedule I(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Underwriter and, if
requested by the Underwriter, will prepare and furnish without charge to the Underwriter an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any statements or
omissions in an
12
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly for use therein.
7. The Company and the Selling Stockholder covenant and agree with one another and with the
Underwriter that (a) the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriter and dealers; (ii) the
cost of printing or producing this Agreement, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(c) hereof, including the
fees and disbursements of counsel for the Underwriter in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the fees and disbursements of counsel
for the Underwriter in connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 7; and (b) the Selling Stockholder will pay or cause to
be paid all costs and expenses incident to the performance of the Selling Stockholder’s obligations
hereunder which are not otherwise specifically provided for in this Section, including (i) any fees
and expenses of counsel for the Selling Stockholder, (ii) the fees and expenses of the
Attorneys-in-Fact and the Custodian and (iii) all expenses and taxes incident to the sale and
delivery of the Shares to be sold by the Selling Stockholder to the Underwriter hereunder. In
connection with clause (b) (iii) of the preceding sentence, the Underwriter agrees to pay New York
State stock transfer tax, and the Selling Stockholder agrees to reimburse the Underwriter for
associated carrying costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood, however, that the Company shall bear,
and the Selling Stockholder shall not be required to pay or to reimburse the Company for, the cost
of any other matters not directly relating to the sale and purchase of the Shares pursuant to this
Agreement, and that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of its counsel, stock transfer taxes on resale of any of the Shares by the
Underwriter, and any advertising expenses connected with any offers the Underwriter may make.
8. The obligations of the Underwriter hereunder shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the Company and of the
Selling Stockholder herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholder shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; all material required to be filed
by the Company pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time period prescribed for such filings by Rule 433; no
stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have
13
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act shall have been received; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened
by the Commission; and all requests for additional information on the part of the Commission
shall have been complied with to the Underwriter’s reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, shall have furnished to the
Underwriter such written opinion or opinions (a draft of each such opinion is attached as
Annex II (a) hereto), dated the Time of Delivery, with respect to the incorporation of the
Company, the validity of the Shares as well as such other related matters as the Underwriter
may reasonably request, and such counsel shall have received such papers and information as
such counsel may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx and Xxxxx LLP, counsel for the Company, shall have furnished to the
Underwriter their written opinion (a draft of such opinion is attached as Annex II (b)
hereto), dated the Time of Delivery, in form and substance satisfactory to the Underwriter,
to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus,
and the Shares have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock contained in the
Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered by the
Company;
(iv) No consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the sale of the
Shares or the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares, and such consents,
approvals, authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriter;
(v) The statements set forth in the Company’s Current Report on Form 8-K dated
November 30, 2004, under the caption “Description of Capital Stock”, insofar as they
purport to constitute a summary of the terms of the stock, are accurate and complete in
all material respects;
(vi) The Company is not an “investment company”, as such term is defined in the
Investment Company Act; and
(vii) The Registration Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which
14
such counsel need express no opinion) comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; although such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Prospectus or the Prospectus,
except for those referred to in the opinion in subsection (v) of this Section 8(c), such
counsel has no reason to believe that (A) as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) that the Pricing Prospectus, as of the
Applicable Time, when considered together with and as supplemented by the price to the
public and number of shares set forth on the cover page of the Prospectus, contained any
untrue statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading (C) that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus or any further amendment
or supplement thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or required to
be described in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(d) X. Xxxxx Rice, Vice President – Legal Affairs of the Company, shall have furnished
to the Underwriter his written opinion (a draft of such opinion is attached as Annex II (c)
hereto), dated the Time of Delivery, in form and substance satisfactory to the Underwriter,
to the effect that:
(i) The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that such counsel believes that both the Underwriter and
such counsel are justified in relying upon such opinions and certificates);
15
(ii) Each Significant Subsidiary of the Company has been formed and is validly
existing as a corporation, limited liability company or limited partnership in good
standing under the laws of its incorporation or formation, as the case may be; and all
of the issued shares of capital stock, membership interests and limited partnership
interests of each such Significant Subsidiary have been duly and validly authorized and
issued, are, in the case of shares of capital stock, fully paid and non-assessable, and
(except for directors’ qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (other than pledges pursuant to the [Amended and
Restated Credit Agreement]) (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its Significant Subsidiaries, provided
that such counsel shall state that such counsel believes that both the Underwriter and
such counsel are justified in relying upon such opinions and certificates);
(iii) To the best of such counsel’s knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings (A) pending to which the
Company or any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject or (B) threatened or contemplated by governmental
authorities or others which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse Effect;
(iv) The compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated (A) will not conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (B) will not
result in any violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or (C) will not result in any violation of any statute or any order, rule
or regulation known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties
except in the case of clauses (A) and (C) as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(v) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or (B) in default in the performance or
compliance with any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound,
except in the case of clause (B) as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(vi) The documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein, as to which such
counsel need express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations
16
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or omitted to state a
material fact required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under the Exchange
Act with the Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
misleading; and
(vii) The Registration Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; although such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Prospectus or the Prospectus, such
counsel has no reason to believe that, (A) as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Pricing Prospectus, as of
the Applicable Time, when considered together with and as supplemented by the price to
the public and number of shares set forth on the cover page of the Prospectus,
contained any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (C) that, as of its date, the Prospectus or
any further amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading
or that, as of the Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
and such counsel does not know of any amendment to the Registration Statement required
to be filed or of any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as required;
(e) Xxxxx X. Xxxxxx, Vice President and General Counsel of Duchossois Industries, Inc.,
an affiliate of the Selling Stockholder, shall have furnished to the Underwriter his written
opinion dated the Time of Delivery, in form and substance satisfactory to the Underwriter,
to the effect that the Power of Attorney, the Custody Agreement and this Agreement have been
17
duly executed and delivered by or on behalf of the Selling Stockholder; and the sale of the
Shares to be sold by the Selling Stockholder hereunder and the compliance by the Selling
Stockholder with all of the provisions of this Agreement, the Power of Attorney and the
Custody Agreement, and the consummation of the transactions herein and therein contemplated
will not (a) result in a breach or default by the Selling Stockholder under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known to such
counsel to which the Selling Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the property or assets of the Selling Stockholder is subject, and
that, in each case, is material to the Selling Stockholder, (b) conflict with the provisions
of the limited liability company agreement or other governing instruments of the Selling
Stockholder or (c) violate (i) any statute or regulation known to such counsel of any
governmental agency or authority having jurisdiction over the Selling Stockholder or its
property and that, in such counsel’s experience, is normally applicable to transactions of
the type contemplated by this Agreement or (ii) any order known to such counsel of any court
or government agency or body having jurisdiction over the Selling Stockholder or its
property, except (x) with respect to clauses (a) and (c)(ii) above, as would not,
individually or in the aggregate, reasonably be expected to have a material adverse effect
on the consummation by the Selling Stockholder of the transactions contemplated by this
Agreement and (y) no opinion shall be expressed as to state securities or Blue Sky laws;
(f) Xxxxx Day, counsel to the Selling Stockholder, shall have furnished to the
Underwriter its written opinion dated the Time of Delivery, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The Power of Attorney and the Custody Agreement constitute valid and binding
agreements of the Selling Stockholder in accordance with their respective terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and general
equitable principles and subject to any principles of public policy limiting the
rights to enforce any indemnification provisions contained therein;
(ii) To such counsel’s knowledge, no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required in connection with
(i) the execution, delivery or performance by the Selling Stockholder of the Power of
Attorney, Custody Agreement and (ii) the execution, delivery or performance by the
Selling Stockholder of this Agreement or in connection with the sale of the Shares by
the Selling Stockholder hereunder, except (A) those that have been made or obtained; (B)
those that are not required to be made or obtained by the date hereof and (C) such as
may be required under (1) state securities or “blue sky” laws or (2) the Act or the
Exchange Act in connection with the purchase and distribution of such Shares by the
Underwriter;
(iii) Upon payment by the Underwriter for the Shares to be sold by the Selling
Stockholder as provided in this Agreement, delivery of such Shares, as directed by the
Underwriter, to Cede or such other nominee as may be designated by DTC in the State of
New York, registration of such Shares in the name of Cede or such other nominee and the
crediting of such Shares on the records of DTC to securities accounts of the
Underwriter, assuming that neither DTC nor the Underwriter has “notice of any adverse
claim” (as such phrase is defined in Section 8-105 of the UCC to such Shares, (A) DTC
shall be a “protected purchaser” of such Shares within the meaning of Xxxxxxx 0-000 xx
00
xxx XXX, (X) under Section 8-501 of the UCC, the Underwriter will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any “adverse
claim” (as defined in Section 8-102 of the UCC) to such Shares may be asserted against
the Underwriter with respect to such security entitlement (it being assumed that for the
purposes of this opinion that when such payment, delivery and crediting occur, (x) such
Shares will have been registered in the name of Cede or another nominee designated by
DTC, in each case on the Company’s share registry in accordance with its Certificate of
Incorporation, By-Laws and applicable law, (y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the account(s) of the Underwriter on the records of DTC will have been made pursuant
to the UCC);
(g) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, Ernst & Young LLP shall have furnished to the Underwriter a letter or
letters, dated the respective dates of delivery thereof, in form and substance satisfactory
to the Underwriter, to the effect set forth in Annex I hereto (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto
and a draft of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(h)(i) Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus, and (ii) since the respective dates as of which information is given
in the Pricing Prospectus there shall not have been any change in the capital stock (other
than pursuant to the Company’s equity benefit plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of, the date of this
Agreement) or long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of the
Underwriter so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus;
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities or preferred stock by any “nationally
recognized statistical rating organization”, as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its
rating of any of the Company’s debt securities or preferred stock;
(j) On or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the Exchange;
(ii) a suspension or material limitation in trading in the Company’s securities on the
Exchange; (iii) a
19
general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment
of the Underwriter makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus;
(k) The Shares at the Time of Delivery shall have been duly listed, subject to notice
of issuance, on the Exchange;
(l) The Company shall have complied with the provisions of Section 5(d) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the
date of this Agreement; and
(m) The Company and the Selling Stockholder shall have furnished or caused to be
furnished to the Underwriter at the Time of Delivery certificates of officers of the Company
and of the Selling Stockholder, respectively, satisfactory to the Underwriter as to the
accuracy of the representations and warranties of the Company and the Selling Stockholder,
respectively, herein at and as of such Time of Delivery, as to the performance by the
Company on the one hand and the Selling Stockholder on the other hand, of all of their
respective obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as the Underwriter may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set forth in
subsections (a) and (h) of this Section.
9. (a) The Company will indemnify and hold harmless the Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the Registration Statement, the Basic
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Basic Prospectus, the Pricing
Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein.
(b) The Selling Stockholder will indemnify and hold harmless the Underwriter against any
losses, claims, damages or liabilities, joint or several, to which the Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect
20
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the Registration Statement,
the Basic Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to rule 433(d) under the Act, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred, 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 any Preliminary Prospectus, the Registration Statement, the Basic Prospectus, the Pricing
Prospectus or the Prospectus or any such amendment or supplement or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
the Selling Stockholder expressly for use therein (which the parties hereto agree consists, as of
the date hereof, only of the information under the caption “Selling Stockholder”); provided,
however, that the Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Pricing Prospectus or the Prospectus or any such
amendment or supplement or any Issuer Free Writing Prospectus, in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly for use therein.
(c) The Underwriter will indemnify and hold harmless the Company and the Selling Stockholder
against any losses, claims, damages or liabilities to which the Company or the Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the Basic Prospectus,
the Pricing Prospectus or the Prospectus or any such amendment or supplement or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein; and will reimburse the Company and the
Selling Stockholder for any legal or other expenses reasonably incurred by the Company or the
Selling Stockholder in connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party
21
(who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriter on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required under subsection (d) above, then
each indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholder on the one hand and the Underwriter on
the other in connection with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling Stockholder on the
one hand and the Underwriter 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
Stockholder bear to the total underwriting discounts and commissions received by the Underwriter,
in each case as set forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder on the one hand or the
Underwriter on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the Selling Stockholder
and the Underwriter agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this subsection (e).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
22
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.
(f) The obligations of the Company and the Selling Stockholder under this Section 9 shall be
in addition to any liability which the Company and the Selling Stockholder may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the Underwriter under this
Section 9 shall be in addition to any liability which the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or the Selling Stockholder within the meaning of the Act.
10. If the Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder, the Underwriter may arrange for another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours after such default
by the Underwriter, the Underwriter does not arrange for the purchase of such Shares, then the
Selling Stockholder shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, the Underwriter notifies the Selling Stockholder that the
Underwriter has so arranged for the purchase of such Shares, or the Selling Stockholder notifies
the Underwriter that the Selling Stockholder has so arranged for the purchase of such Shares, the
Underwriter or the Selling Stockholder shall have the right to postpone the Time of Delivery for a period of not
more than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or the Prospectus
which in the Underwriter’s opinion may thereby be made necessary. The term “Underwriter” as used
in this Agreement shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such Shares.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholder and the Underwriter, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriter or any controlling person of the Underwriter, or the Company, the Selling
Stockholder, or any officer or director or controlling person of the Company or any controlling
person of the Selling Stockholder, and shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company
nor the Selling Stockholder shall then be under any liability to the Underwriter except as provided
in Sections 7 and 9 hereof; but, if for any other reason the Shares are not delivered by or on
behalf of the Selling Stockholder as provided herein, the Selling Stockholder will reimburse the
Underwriter for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriter in making preparations for the purchase, sale and delivery of the
Shares, but the Company and the Selling Stockholder shall then be under no further liability to the
Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings with the Selling Stockholder hereunder, the Underwriter and the Company
shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of the
Selling Stockholder made or given by any or all of the Attorneys-in-Fact for the Selling
Stockholder.
23
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriter shall be delivered or sent by mail, telex or facsimile transmission to the Underwriter
at , New York, New York , Attention: ; if to
the Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to
counsel for the Selling Stockholder at Duchossois Industries Inc., 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Vice President & General Counsel, Facsimile Number:
(000) 000-0000, with a copy to Xxxxx Day, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxxx X. Xxxxxxxx, Facsimile Number: (000) 000-0000, and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice to the Underwriter
pursuant to Section 9(d) hereof shall be delivered or sent by mail, telex or facsimile transmission
to the Underwriter at its address. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter,
the Company and the Selling Stockholder and, to the extent provided in Sections 9 and 11 hereof,
the officers and directors of the Company and each person who controls the Company, the Selling
Stockholder or the Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from the Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
17. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
18. The Company and the Selling Stockholder are authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to support any U.S.
federal income tax benefits expected to be claimed with respect to such transaction, and all
materials of any kind (including tax opinions and other tax analyses) related to those benefits,
without the Underwriter imposing any limitation of any kind.
19. The Company agrees with the Underwriter and the Selling Stockholder that if the
Underwriter complies with the selling restrictions set forth in a separate writing previously
agreed between the parties, then each sale of any Shares by the Selling Stockholder, the
Underwriter or any initial purchaser or subsequent holder of the Shares shall conclusively be
deemed to comply with any and all requirements, restrictions, conditions and other provisions
contained in, and to not be prohibited by, the Stockholders Agreement, dated as of October 26, 2001
and as amended as of November 5, 2001 (the “Stockholders Agreement”), between the Company, TCMC,
Inc., and TIC I, LLC Prior to the closing, the Company shall cause its transfer agent to terminate
the stop transfer instructions and remove all restrictive legends set forth on certificates
representing the Shares and agrees that no initial purchaser or subsequent holder of Shares (in
each case excluding Newco, a Related Person with respect to Newco or a Family Affiliate (as such
terms are defined in the Stockholders Agreement)) shall be bound by, or required to become a party
to, the Stockholders Agreement.
24
20. The Selling Stockholder acknowledges and agrees that (i) the purchase and sale of the
Shares pursuant to this Agreement is an arm’s-length commercial transaction between the Selling
Stockholder, on the one hand, and the Underwriter, on the other, (ii) in connection therewith and
with the process leading to such transaction the Underwriter is acting solely as a principal and
not the agent or fiduciary of the Selling Stockholder, (iii) the Underwriter has not assumed an
advisory or fiduciary responsibility in favor of the Selling Stockholder with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether the
Underwriter has advised or is currently advising the Selling Stockholder on other matters) or any
other obligation to the Selling Stockholder except the obligations expressly set forth in this
Agreement and (iv) the Selling Stockholder has consulted its own legal and financial advisors to
the extent it deemed appropriate. The Selling Stockholder agrees that it will not claim that the
Underwriter has rendered advisory services of any nature or respect, or owes a fiduciary or similar
duty to the Selling Stockholder, in connection with such transaction or the process leading
thereto.
21. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Selling Stockholder and the Underwriter with respect to the subject
matter hereof.
22. The Company, the Selling Stockholder and the Underwriters hereby irrevocably waive, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
23. The Underwriter agrees with the Selling Stockholder that it will not sell any Shares other
than in compliance with the selling restrictions contained in the separate writing referred to in
Section 19 above.
25
Any person executing and delivering this Agreement as Attorney-in-Fact for the Selling
Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such
Selling Stockholder pursuant to a validly existing and binding Power of Attorney which authorizes
such Attorney-in-Fact to take such action.
| Very truly yours, | ||||||
| Trinity Industries, Inc. | ||||||
| By: | ||||||
| Title: | ||||||
| TIC I, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| TIC II, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Underwriter]
By: |
||||
26
SCHEDULE I
(a) Issuer Free Writing Prospectuses:
(b) Additional Documents Incorporated by Reference:
ANNEX I
Pursuant to Section 8(g) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriter to the effect that:
(i) They are independent certified public accountants with respect to the Company and
its subsidiaries within the meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of which have been
separately furnished to the Underwriter;
(iii) They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company’s quarterly report on Form 10-Q incorporated
by reference into the Prospectus as indicated in their reports thereon, copies of which have
been separately furnished to the Underwriter; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most recent fiscal
years included in the Prospectus and included or incorporated by reference in Item 6 of the
Company’s Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or incorporated by
reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all material
respects with
F-1
the disclosure requirements of Items 301, 302, 402 and 503(d), respectively,
of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the Prospectus
and/or included or incorporated by reference in the Company’s Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company’s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items included in
the Prospectus do not agree with the corresponding items in the unaudited consolidated
financial statements from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial statements included
or incorporated by reference in the Company’s Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not included in the Prospectus
but from which were derived the unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial statements included or
incorporated by reference in the Company’s Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the published rules
and regulations thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible securities, in each
case which
F-2
were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases in consolidated net
current assets or stockholders’ equity or other items specified by the Underwriter, or
any increases in any items specified by the Underwriter, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in clause
(E) there were any decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items specified by the
Underwriter, or any increases in any items specified by the Underwriter, in each case as
compared with the comparable period of the preceding year and with any other period of
corresponding length specified by the Underwriter, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriter which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Underwriter or in documents
incorporated by reference in the Prospectus specified by the Underwriter, and have compared
certain of such amounts, percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in agreement.
F-3
ANNEX 3
Form of Lock-Up Agreement
March __, 2006
[Name]
[Address]
New York, New York
[Address]
New York, New York
Re: Trinity Industries, Inc. — Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that , as the underwriter (the
“Underwriter”), proposes to enter into an underwriting agreement (the “Underwriting Agreement”)
with Trinity Industries, Inc., a Delaware corporation (the “Company”), and TIC I, LLC and TIC II,
LLC (together, the “Selling Stockholder”) for a public offering of shares of common stock, par
value $1.00 per share, of the Company (the “Common Stock”) pursuant to Registration Statement on
Form S-3 (Registration Number 333- ), which has been filed with the Securities and
Exchange Commission.
In consideration of the agreement by the Underwriter to offer and sell the shares of Common
Stock, the undersigned agrees that, during the period beginning from the date of Underwriting
Agreement and continuing to and including the date 30 days after the date of the Prospectus (as
defined in the Underwriting Agreement), the undersigned will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the Company that are
substantially similar to the shares of Common Stock, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right to receive, stock or any
such substantially similar securities (other than pursuant to equity benefit plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities outstanding as of the
date hereof) (collectively, the “Undersigned’s Shares”), without the Underwriter’s prior written
consent.
The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any
hedging or other transaction which is designed to or which reasonably could be expected to lead to
or result in a sale or disposition of the Undersigned’s Shares even if such shares of Common Stock
would be disposed of by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any of the
Undersigned’s Shares or with respect to any security that includes, relates to, or derives any
significant part of its value from the shares of Common Stock or other securities.
The undersigned understands that the Company, the Selling Stockholder and the Underwriter are
relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The
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undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding
upon the undersigned’s heirs, legal representatives, successors, and assigns.
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| Very truly yours, | ||||
| Authorized Signature | ||||
| Title |
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