3,750,000 SHARES
CAPITAL ENVIRONMENTAL RESOURCE INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_____ __, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX XXXXXX XXXXX INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Capital Environmental Resource Inc., a company
incorporated under the laws of the Province of Ontario, Canada (the "COMPANY"),
proposes to issue and sell to the several underwriters named in Schedule A
hereto ("UNDERWRITERS"), for whom Credit Suisse First Boston Corporation,
Xxxxxxx Xxxxx & Associates, Inc. and Xxxxxxx Xxxxxx Xxxxx Inc. are acting as
representatives (the "REPRESENTATIVES"), [2,998,725] common shares ("COMPANY
FIRM SECURITIES") of its capital stock ("SECURITIES"), and the shareholders of
the Company named in Schedule B hereto (collectively the "SELLING SHAREHOLDERS"
and each a "SELLING SHAREHOLDER") propose to sell to the underwriters an
aggregate of [751,275] shares of the Securities (and together with the Company
Firm Securities, "FIRM SECURITIES"), and the Company also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than [562,500] additional shares ("OPTIONAL SECURITIES") of its Securities
as set forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES." The Company and each Selling
Shareholder hereby agree with the several Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EACH SELLING
SHAREHOLDER.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333- ) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("COMMISSION") and
either (i) has been declared effective under the Securities Act of
1933 ("ACT") and is not proposed to be amended or (ii) is proposed
to be amended by amendment or post-effective amendment. If such
registration statement ("INITIAL REGISTRATION STATEMENT") has been
declared effective, either (i) an additional registration statement
("ADDITIONAL REGISTRATION STATEMENT") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("RULE 462(B)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the
additional registration statement or (ii) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend
it, and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c) ("RULE 462(C)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (i) if the
Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery
of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (ii) if the
Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised
the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are herein referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("RULE 424(B)") under the Act or
(if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder ("RULES AND REGULATIONS") and did not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to
the requirements of the Act and the Rules and Regulations and did
not include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) on the date of this Agreement, the
Initial Registration Statement and,
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if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects
to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or
will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the Province
of Ontario, Canada, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification.
(iv) Each of the Company and its subsidiaries, including those
subsidiaries organized as limited liability companies, has been duly
incorporated or organized and is validly existing as a corporation
or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate or other), to own
its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation or limited liability company in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification except where the failure so to qualify would not have
a material adverse effect upon the business, results of operations,
prospect or conditions of the Company; all of the issued and
outstanding capital stock of, or other ownership interest in, each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock
of, or other ownership interest in, each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects except those arising under the Company's
Amended and Restated Credit Agreement dated as of January 29, 1999
described in the Prospectus and those liens granted to another
subsidiary of the Company under the Company's "double dip" tax
structure.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when
the Offered Securities have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined
below), such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectus; and except as disclosed in the
Prospectus or as waived, the stockholders of the Company have no
preemptive or similar rights with respect to the Securities.
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(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(vii) The Offered Securities have been approved for inclusion
for quotation on the Nasdaq National Market subject to notice of
issuance.
(viii) Except as disclosed in the Prospectus or as waived
pursuant to written waiver, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act. All persons possessing such rights have
provided the Company with an express written waiver of said rights,
and the Company has provided true and correct copies of all such
waivers to the Representatives.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws.
(x) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such subsidiary, and
the Company has full corporate power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real
properties and all other material properties and assets owned by
them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere
with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess those material
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them in all material respects and have not received
any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the condition (financial or other), business, prospects,
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properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent that could have a Material Adverse Effect.
(xv) The Company and its subsidiaries own or possess adequate
trademarks, trade names, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries are not in substantial
compliance with material applicable law, statute, rule, regulation
or permit decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or natural resources or
human exposure to hazardous or toxic substances (collectively,
"ENVIRONMENTAL LAWS"), do not, to the knowledge of the Company, own
or operate any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any notice, claim or proceeding relating to any
environmental laws, which violation, contamination, liability,
notice, claim or proceeding would individually or in the aggregate
have a Material Adverse Effect; and the Company is not aware of any
circumstances which would lead to such violation, contamination,
liability, notice, claim or proceeding.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; and to the
Company's knowledge, no such actions, suits or proceedings are
threatened.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis and the schedules
included in each Registration Statement present fairly the
information required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, prospects, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
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(xxi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only
in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxii) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or
operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem (that is, any significant risk
that computer hardware or software applications used by the Company
and its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January
1, 2000); as a result of such review, (i) the Company has no reason
to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000
Problem that are of a character required to be described or referred
to in the Registration Statement or Prospectus which have not been
accurately described in the Registration Statement or Prospectus and
(B) the Year 2000 Problem will have a Material Adverse Effect, or
result in any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as a whole;
and The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or
operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem (that is, any significant risk
that computer hardware or software applications used by the Company
and its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January
1, 2000); as a result of such review, (i) the Company has no reason
to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000
Problem that are of a character required to be described or referred
to in the Registration Statement or Prospectus which have not been
accurately described in the Registration Statement or Prospectus and
(B) the Year 2000 Problem will have a Material Adverse Effect, or
result in any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as a whole;
and the Company will request Year 2000 compliance certifications
from its banks, major vendors and customers.
(xxiii) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties.
(b) Each Selling Shareholder represents and warrants to, and agrees
with, the several Underwriters that:
(i) Each Selling Shareholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by it on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by it
on such Closing Date hereunder; and upon the delivery of and payment for
the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by each Selling Shareholder on such Closing
Date.
(ii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between each Selling Shareholder and any
person that would give rise to a valid claim against any Selling
Shareholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
6
(iii) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder and is a valid and
binding agreement of each Selling Shareholder, enforceable in accordance
with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(iv) The execution and delivery by each Selling Shareholder of, and
the performance by each Selling Shareholder of his obligations under this
Agreement or the consummation by each Selling Shareholder of any of the
transactions contemplated hereby, will not contravene or conflict with,
result in a breach of, or constitute a default under, or require the
consent of any other party to any agreement or instrument to which each
Selling Shareholder is bound or under which he is entitled to any right or
benefit, any provision of applicable law or any judgment, order, decree or
regulation applicable to each Selling Shareholder of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over each Selling Shareholder. No consent, approval,
authorization or other order of, or registration or filing with, any court
or other governmental authority or agency, is required for the
consummation by each Selling Shareholder of the transactions contemplated
in this Agreement, except such as have been obtained or made and are in
full force and effect under the Act, applicable state securities or blue
sky laws and from the National Association of Securities Dealers ("NASD").
(v) Each Selling Shareholder has not taken and will not take,
directly or indirect, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Securities to facilitate the sale or resale of the Securities.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and each Selling
Shareholder agree to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company and each Selling
Shareholder, at a purchase price of $ per share, the respective numbers of
shares of Firm Securities set forth below the caption "COMPANY" or "SELLING
SHAREHOLDER", as the case may be, and opposite the names of the Underwriters in
Schedule A hereto.
The Company and each Selling Shareholder will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to Credit Suisse
First Boston Corporation ("CSFBC") drawn to the order of the Company and each
Selling Shareholder at the office of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York time, on ________, 1999, or at
such other time not later than seven full business days thereafter as CSFBC and
the Company determine, such time being herein referred to as the "FIRST CLOSING
DATE." For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold pursuant
to the offering. The certificates for the Firm Securities so to be delivered
will be in definitive form, in such denominations and registered in such names
as CSFBC requests and will be made available for checking and packaging at the
office of Shearman & Sterling at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by CSFBC to
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eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given. The Company will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company, at the office of Shearman & Sterling referred to
above. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the office of Shearman & Sterling referred to above at a reasonable time in
advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus. Each of the Underwriters acknowledges that the
Offered Securities have not been qualified for sale in Canada and acknowledges
and agrees that it has not and will not offer the Offered Securities for sale in
Canada, except pursuant to applicable Canadian securities law exemptions.
5. CERTAIN AGREEMENTS OF THE COMPANY AND EACH SELLING SHAREHOLDER.
The Company, and in the case of paragraphs (h), (i), (k) and (l) below, each
Selling Shareholder severally, and not jointly, agree with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant
to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
8
of a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earning statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other documents
shall be so furnished as soon as available. The Company and each Selling
Shareholder will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for offer and sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so long
as required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request.
(h) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company and each
Selling Shareholder will pay or cause to be paid all expenses incident to
the performance of their obligations under this Agreement, including: (i)
the fees, disbursements and expenses of the Company's counsel, the
Company's accountants and counsel for each Selling Shareholder in
connection with the registration and delivery of the Securities under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers,
9
in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii)
the cost of printing or producing any Blue Sky memorandum in connection
with the offer and sale of the Securities under state securities laws and
all expenses in connection with the qualification of the Securities for
offer and sale under the laws of such jurisdictions designated by CSFBC as
provided in Section 5(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky memorandum, (iv)
all filing fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the review and qualification
of the offering of the Securities by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating
to the Common Stock and all costs and expenses incident to listing the
Securities on the Nasdaq National Market, (vi) the cost of printing
certificates representing the Securities, (vii) the costs and charges of
any transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior written approval of the Company and travel and lodging expenses
of the representatives and officers of the Company and any such
consultants, and one-half of the cost of any aircraft chartered in
connection with the road show, and (ix) all other costs and expenses
incident to the performance of the obligations of the Company and each
Selling Shareholder hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in this
Section and Section 7 entitled "Indemnification and Contribution", the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of
any of the Offered Securities by them and any advertising expenses
connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise
affect any agreement that the Company and each Selling Shareholder may
otherwise have for the allocation of such expenses between themselves.
(i) The Company and each Selling Shareholder will indemnify and hold
harmless the Underwriters against any documentary, stamp or similar issue
tax, including any interest and penalties, on the creation, issue and sale
of the Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Company and each Selling
Shareholder hereunder shall be made without withholding or deduction for
or on account of any present or future taxes, duties or governmental
charges whatsoever unless the Company or each Selling Shareholder is
compelled by law to deduct or withhold such taxes, duties or charges. In
that event, the Company and each Selling Shareholder shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts that
would have been received if no withholding or deduction had been made.
(j) For a period of 180 days after the First Closing Date, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of
its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except (i) issuances of
Securities pursuant to the exercise of warrants or options, in each case
outstanding on the date hereof, (ii) grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, (iii)
issuances of Securities pursuant to the exercise of such options or (iv)
the issuance of up to 2,600,000 Securities ("Acquisition Securities")
pursuant to a shelf registration statement filed by the Company with the
Commission after the Closing Date in connection with business acquisitions
by the Company, PROVIDED that if any Acquisition Securities are to be
issued by the Company within 180 days after the date of the Prospectus,
the Company, as a condition to such issuance, shall obtain from the person
or persons to whom such Acquisition Securities are to be issued an
executed Lock-up Agreement (as defined in Section 6 hereof).
10
(k) Each Selling Shareholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-8
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(l) Each Selling Shareholder agrees, for a period of 180 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares
of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, without the prior written consent of CSFBC.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and each Selling
Shareholder herein, to the accuracy of the statements of Company officers and of
the Selling Shareholder made pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholder of their obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of PricewaterhouseCoopers
LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and financial
statement schedules examined by them and included in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of such
letter, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated total current assets or
total assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(B) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, and with the period
of corresponding length ended the date of the latest statement
of operations included in the Prospectus, in revenues, income
from operations or increase in net loss or per share amounts
of net loss,
11
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration is subsequent to such execution and delivery,
"REGISTRATION STATEMENTS" shall mean the Initial Registration Statement
and the additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBC. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of each Selling Shareholder, Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, prospects, properties or results of operations of the Company or
its subsidiaries taken as one enterprise which, in the judgment of the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the
Nasdaq Stock Market National Market, or any setting of minimum prices for
trading on either such exchange or in such market, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York or Canadian federal or provincial authorities; or (v)
any
12
outbreak or escalation of major hostilities in which the United States or
Canada is involved, any declaration of war by Congress, the Prime Minister
and/or Parliament or any other substantial national or international
calamity or emergency if, in the reasonable judgment of the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx, Xxxxx & Xxxxxxx LLP, United States counsel for
the Company, to the effect that:
(i) Except as disclosed in the Prospectus or as expressly
provided for by written waiver to the Company, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement;
(ii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(iii) No consent, approval, authorization or order of, or
filing with, any United States governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance or
sale of the Offered Securities by the Company or each Selling
Shareholder, except such as have been obtained and made under the
Act and such as may be required under state securities laws;
(iv) The execution, delivery and performance of this Agreement
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any United States statute, rule,
regulation or order of any United States governmental agency or body
or any court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or any agreement or
instrument known to such counsel to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any
such subsidiary is subject;
(v) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; the descriptions in the Registration Statements and
Prospectus under the captions "Risk Factors - We are subject to
changing environmental regulation, which may make it difficult for
us to obtain or maintain the permits and approvals we need to
operate.", "Business - Regulation - United States Regulation" and
"Tax Consequences - United States Federal Income Tax Consideration,"
of United States statutes, legal and governmental proceedings and
the descriptions in the Registration Statements and Prospectus under
the captions "Certain Transactions" of contracts and other
13
documents are accurate and fairly present in all material respects,
the information required to be shown; and such counsel do not know
of any legal or governmental proceedings required to be described in
a Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character required
to be described in a Registration Statement or the Prospectus or to
be filed as exhibits to a Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statements or the
Prospectus;
(vi) Each United States subsidiary of the Company has been
duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each United States
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure so to
qualify would not have a material adverse effect upon the business,
results of operations, prospects or condition of the Company; all of
the issued and outstanding capital stock of each United States
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each subsidiary is owned by the Company, directly or through
subsidiaries, to the best of such counsel's knowledge free from
liens, encumbrances and defects except those arising under the
Company's Amended and Restated Credit Agreement dated as of January
29, 1999 described in the Prospectus and those liens granted to
another subsidiary of the Company under the Company's "double dip"
tax structure; and
(vii) This Agreement has been duly delivered by the Company.
In rendering such opinion, Xxxxxx, Xxxxx & Xxxxxxx LLP may rely as
to all matters governed by Canadian law upon the opinion of Tory
Xxxx XxxXxxxxxxx & Binnington.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the company, at which
conferences the contents of the Registration Statement and the Prospectus
and related maters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or any amendment thereto, as of its effective date or as of the
Closing Date, (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel
need express no belief) contained any untrue statement of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Tory Xxxx XxxXxxxxxxx & Xxxxxxxxxx, Canadian counsel for
the Company to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of the Province of Ontario, Canada, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification;
(ii) The Offered Securities delivered on such Closing Date
[and all other outstanding shares of the Common Stock of the
Company] have been duly authorized and validly issued, are
14
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company
have no preemptive or similar rights with respect to the Securities;
(iii) The descriptions in the Registration Statements and
Prospectus in "Risk Factors - We are subject to changing
environmental regulation which may make it difficult for us to
obtain or maintain the permits and approvals we need to operate;"
"Business - Regulation - Canadian Regulation," "Business - Exchange
Controls," and "Tax Consequences - Canadian Federal Income Tax
Considerations for United States Tax Investors," of Canadian
statutes, legal and governmental proceedings and the descriptions in
the Registration Statements and Prospectus under the captions
"Certain Transactions" of contracts and other documents are accurate
and fairly present in all material respects, the information shown;
(iv) The Company holds all material licenses, certificates and
permits from federal governmental authorities in Canada and
provincial authorities in the Province of Ontario which are
necessary to the conduct of its business;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court of Canada or the
Province of Ontario is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Offered Securities by the Company;
(vi) The execution, delivery and performance of this Agreement
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any Canadian or Province of Ontario
statute, rule, regulation or order of any governmental agency or
body or any court of Canada or the Province of Ontario having
jurisdiction over the Company or any subsidiary of the Company
formed under the laws of Canada or the Province of Ontario or any of
their properties or (B) the charter or by-laws of the Company or any
such subsidiary, and the Company has full corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(vii) Each subsidiary of the Company which is incorporated
under the laws of Canada or the Province of Ontario has been duly
incorporated and is an existing corporation in good standing under
such laws of Canada or the Province of Ontario, as the case may be,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(viii) Except as disclosed in the Prospectus, under current
Canadian federal or Ontario provincial laws and regulations, all
dividends and other distributions declared and payable on the
Offered Securities may be paid by the Company to the holder thereof
in United States dollars or Canadian Dollars that may be converted
into foreign currency and freely transferred out of Canada and all
such payments made to holders thereof or therein who are
non-residents of Canada will not be subject to income, withholding
or other taxes under Canadian federal or Ontario provincial laws and
regulations thereof or therein and will otherwise be free and clear
of any other tax, duty, withholding or deduction in Canada and
without the necessity of obtaining any Canadian federal or Ontario
provincial governmental authorization; and
(ix) This Agreement has been duly executed by the Company.
(f) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to such matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Shearman
15
& Sterling may rely as to all matters governed by Canadian law upon the
opinion of Tory Xxxx XxxXxxxxxxx & Xxxxxxxxxx.
(g) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive Officer, the President or any
Vice President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the date of
the most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, prospects, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements
of subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(i) The Representatives shall have received an opinion, dated such
Closing Date, of _______, counsel for each Selling Shareholder, to the
effect that:
(i) Each Selling Shareholder had valid and unencumbered title
to the Offered Securities delivered by each Selling Shareholder on
such Closing Date and had full right, power and authority to sell,
assign, transfer and deliver the Offered Securities delivered by
each Selling Shareholder on such Closing Date hereunder; and the
several Underwriters have acquired valid and unencumbered title to
the Offered Securities purchased by them from each Selling
Shareholder on such Closing Date hereunder, except for any pledge or
lien in respect of the Offered Securities created by any
Underwriter;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by each Selling Shareholder for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities sold by each
Selling Shareholder, except such as have been obtained and made
under the Act and such as may be required under state securities
laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
any rule,regulation or order of any governmental agency or body or
any court having jurisdiction over each Selling Shareholder or any
of his properties or any agreement or instrument to which each
Selling Shareholder is a party or by which each Selling Shareholder
is bound or to which any of the properties of each Selling
Shareholder is subject; and
(iv) This Agreement has been duly authorized, executed and
delivered by each Selling Shareholder.
16
(j) The Representatives shall have examined an opinion, dated such
Closing Date, of E. Xxx Xxxxxx, General Counsel of the Company to the
effect that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification;
(ii) Except as disclosed in the Prospectus or as expressly
provided for by written waiver to the Company, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement;
(iii) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any Canadian or
Province of Ontario statute, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company or
any subsidiary of the Company formed under the laws of Canada or the
Province of Ontario or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company is subject; and
(iv) Each subsidiary of the Company is duly qualified to do
business and in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure so to qualify
would not have an adverse material effect upon the business, results
of operations, prospects or condition of the Company; all of the
issued and outstanding capital stock of each Canadian and Ontario
provincial subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital
stock of each such subsidiary is owned by the Company, directly or
through subsidiaries, to the best knowledge of such counsel free
from liens, encumbrances and defects except those arising under the
Company's Amended and Restated Credit Agreement dated as of January
29, 1999 described in the Prospectus and those liens granted to
another subsidiary of the Company under the Company's "double dip"
tax structure.
(k) The Representatives shall have received written agreements in
the form of Exhibit I hereto (collectively, "Lock-up Agreements") from the
holders all outstanding Securities, and all securities convertible into or
exercisable or exchangeable for Securities, that restrict such holders
from selling, making any short sale of, granting any option for the
purchase of, or otherwise transferring or disposing of, any of such
Securities, or any such securities convertible into or exercisable or
exchangeable for Securities (other than the Securities to be sold by the
Selling Stockholders in accordance with the terms hereof), for a period of
180 days after the date of the Prospectus without the prior written
consent of CSFBC; and the Company
17
shall have imposed a stop-transfer instruction with the Company's transfer
agent in order to enforce the foregoing Lock-Up Agreements.
(l) The Representatives shall have received such other documents and
certificates as are reasonably requested by themselves or their counsel.
(m) The Representatives shall have examined an opinion, dated such
Closing Date, of [________], Canadian Counsel of the Company to the effect that:
(i) The execution, delivery and performance of this Agreement
and the issuance and sale of the Offered Securities will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any Province of Alberta or British
Columbia statute, rule, regulation or order of any governmental
agency or body or any court of the Province of Alberta or British
Columbia having jurisdiction over the Company or any subsidiary of
the Company formed under the laws of the Province of Alberta or
British Columbia or any of their properties or (B) the charter or
by-laws of the Company or any such subsidiary, and the Company has
full corporate power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(ii) Each subsidiary of the Company which is incorporated
under the laws of the Province of Alberta or British Columbia has
been duly incorporated and is an existing corporation in good
standing under such laws of the Province of Alberta or British
Columbia, as the case may be, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus; and
(iii) Each subsidiary of the Company is duly qualified to do
business and in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure so to qualify
would not have an adverse material effect upon the business, results
of operations, prospects or condition of the Company; all of the
issued and outstanding capital stock of each Alberta or British
Columbia provincial subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each such subsidiary is owned by the
Company, directly or through subsidiaries, to the best knowledge of
such counsel free from liens, encumbrances and defects except those
arising under the Company's Amended and Restated Credit Agreement
dated as of January 29, 1999 described in the Prospectus and those
liens granted to another subsidiary of the Company under the
Company's "double dip" tax structure.
Each Selling Shareholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole
18
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any reasonable legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and FURTHER PROVIDED that
the foregoing indemnity agreement with respect to any untrue statement or
omission or alleged untrue statement or omission in any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages, liabilities or judgments purchased Offered
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered Securities to
such person, and if the Prospectus (as so amended and supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or judgment.
(b) Each Selling Shareholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, but (x) only with reference to information relating
to such Selling Shareholder furnished in writing by or on behalf of such Selling
Shareholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto and (y) only
to the extent of the gross proceeds received by such Selling Shareholders from
the offering of the Offered Securities; PROVIDED, HOWEVER, that each Selling
Shareholder will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any
who controls the Company within the meaning of Section 15 of the Act, and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or each Selling Shareholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement
19
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling Shareholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus under the caption "Underwriting"
furnished on behalf of each Underwriter: (i) the concession and reallowance
figures appearing in the 4th paragraph, (ii) the 6th paragraph with respect to
discretionary sales, and (iii) the 11th paragraph with respect to stabilization.
(d) Promptly after receipt by an indemnified party under this
Section or Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above or Section 9, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section or Section 9, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless (i) such settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not contain a
statement of fault or culpability or a failure to act on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and each Selling Shareholder on the one hand and the Underwriters on
the other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and each
Selling Shareholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and each Selling
Shareholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and each Selling Shareholder bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, each Selling Shareholder or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no
20
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and each Selling Shareholder
under this Section or Section 9 shall be in addition to any liability which the
Company and each Selling Shareholder may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as defined below) within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company and each Selling
Shareholder for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and each Selling Shareholder
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or each Selling
Shareholder except as provided in Section 10 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. QUALIFIED INDEPENDENT UNDERWRITER. The Company hereby confirms
that at its request CSFBC has without compensation acted as "qualified
independent underwriter" (in such capacity, the "QIU") within the meaning of
Rule 2720 of the Conduct Rules of the NASD in connection with the offering of
the Offered Securities. The Company and each Selling Shareholder will severally
and not jointly indemnify and hold harmless the QIU against any losses, claims,
damages or liabilities, joint or several, to which the QIU 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 the
QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred and
provided, further, that a Selling Shareholder shall only be subject to liability
under this Section to the extent such liability arises out of or is based upon
any untrue statement or alleged untrue statement or upon an omission or alleged
omission based upon information provided by such Selling Shareholder or
contained in a representation or warranty given by such Selling Shareholder in
this Agreement; and provided, further, that the liability under this Section of
each Selling Shareholder shall be limited to an amount equal to the aggregate
gross proceeds to each Selling Shareholder from the sale of Securities sold by
each Selling Shareholder hereunder.
21
10. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of each Selling Shareholder, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, each Selling
Shareholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and each Selling Shareholder shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, each Selling
Shareholder and the Underwriters pursuant to Section 7 and the obligations of
the Company and each Selling Shareholder pursuant to Section 9 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company and
each Selling Shareholder will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
11. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 0000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx X0X 0XX Xxxxxx, Attention: General Counsel; or, if sent to
each Selling Shareholder, will be mailed, delivered or telegraphed and confirmed
to _________ at _________________; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
13. REPRESENTATION OF UNDERWRITERS. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any state or federal court
located in the Borough of Manhattan, The City of New York, New York (a "NEW YORK
COURT"), (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding. The Company irrevocably waives any immunity to jurisdiction to which
it may otherwise be entitled or become entitled (including sovereign immunity,
immunity to pre-judgment attachment, post-judgment attachment and execution) in
any legal suit, action or proceeding against it arising out of or based on this
Agreement or the transactions contemplated hereby which is instituted in any New
York Court or in any competent court in _______________ or the __________. The
Company irrevocably appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its authorized agent in the Borough of Manhattan in The City of
New York upon
22
which process may be served in any such suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the
Company by the person serving the same to the address provided in Section 11,
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of seven years from the date of this
Agreement.
The obligation of the Company or each Selling Shareholder in respect
of any sum due to any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company and each Selling Shareholder agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to pay to
the Company or each Selling Shareholder an amount equal to the excess of the
dollars so purchased over the sum originally due to such Underwriter hereunder.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among each
Selling Shareholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
CAPITAL ENVIRONMENTAL RESOURCE INC.
By
------------------------------------
[INSERT TITLE]
L&S XXXXXX ENTERPRISES INC.
By
------------------------------------
GRANVIN INVESTMENTS INC.
By
------------------------------------
0000 - 0000 XXXXXX INC.
By
------------------------------------
ABCO/KINGSWOOD
By
------------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX XXXXXX XXXXX INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------------
[INSERT TITLE]
24
SCHEDULE A
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
------------------------- FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston Corporation....
Xxxxxxx Xxxxx & Associates, Inc...........
Xxxxxxx Xxxxxx Xxxxx Inc..................
------- ----------- ---------
Total...............................
======= =========== =========
SCHEDULE B
SELLLING SHAREHOLDERS:
Granvin Investments Inc.
L&S Xxxxxx Enterprises Inc.
0000-0000 Xxxxxx Inc.
ABCO/Kingswood
