EXHIBIT 1.1
AMERICAN RAILCAR INDUSTRIES, INC.
[__] Shares
of
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
[__], 2006
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, Inc.
CIBC World Markets Corp.
Xxxxxx Xxxxxx & Company, Inc.
as Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
American Railcar Industries, Inc., a Delaware corporation (the "New
ARI"), proposes to issue and sell (the "Offering") to the underwriters named in
Schedule A annexed hereto (the "Underwriters") an aggregate of [__] (the "Firm
Shares") of common stock, $0.01 par value per share, of New ARI (the "Common
Stock"). In addition, solely for the purpose of covering over-allotments, New
ARI proposes to grant to the Underwriters the option to purchase from New XXX xx
to an additional [__] shares of Common Stock (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred
to as the "Shares." The Shares are as described in the Prospectus (as defined
below).
New ARI hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested UBS Financial Services Inc.
("UBS-FinSvc") to administer a directed share program (the "Directed Share
Program") under which up to [__] Firm Shares, or 5% of the Firm Shares to be
purchased by the Underwriters (the "Reserved Shares"), shall be reserved for
sale by UBS-FinSvc at the initial public offering price to New ARI's officers,
directors, employees and consultants and other persons having a relationship
with New ARI designated by New ARI (the "Directed Share Participants") as part
of the distribution of the Shares by the Underwriters, subject to the terms of
this Agreement, the applicable rules, regulations and interpretations of the
National Association of Securities Dealers, Inc. (the "NASD") and all other
applicable laws, rules and regulations. The number of Shares available for sale
to the general public will be reduced to the extent that Directed Share
Participants purchase Reserved Shares. The Underwriters may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on the
same basis as the other Shares being issued and sold hereunder. New ARI has
supplied UBS-FinSvc with names, addresses and telephone numbers of the
individuals or other entities that New ARI has designated to be participants in
the Directed Share Program. It is understood that any number of those designated
to participate in the Directed Share Program may decline to do so.
As described in the Registration Statement (as defined below),
American Railcar Industries, Inc., a Missouri corporation and sole stockholder
of New ARI ("Old ARI"), will on or prior to the Time of Purchase (as defined
below), pursuant to a Certificate of Ownership and Merger, to be filed by Old
ARI, with the Secretary of State of the State of Delaware on or prior to the
Time of Purchase in the form filed with the Securities and Exchange Commission
(the "Commission") as an exhibit to the Registration Statement (the "Certificate
of Merger"), merge with and into New ARI, with New ARI being the surviving
corporation. Pursuant to this merger (i) the [__] shares of Old ARI's common
stock, $0.01 par value per share will be exchanged for [__] shares of a single
class of New ARI's common stock, par value $0.01 per share and (ii) [__] shares
of Old ARI's new preferred stock will be exchanged for [__]
shares of New ARI's new preferred stock (the merger of Old ARI with and into New
ARI and the share exchanges are collectively referred to as the "Merger").
Prior to or concurrently with and as a condition to the consummation
of the Offering contemplated hereby, New ARI will (i) repay all revolving loans
under the revolving credit facility pursuant to the credit agreement dated March
10, 2005 among Old ARI, North Fork Business Capital Corporation (as
administrative agent) and the other lenders party thereto (the "Credit
Facility"), (ii) amend and restate the Credit Facility as described in the
Registration Statement and the Preliminary Prospectus (the "New Credit
Facility"), (iii) deposit an amount equal to the aggregate principal amount and
all accrued and unpaid interest outstanding under the industrial revenue bonds
due 2011 (the "Industrial Revenue Bonds") issued by the Company with [__] as
trustee (the "Trustee") thereunder and deliver irrevocable instructions to the
Trustee notifying the holders thereunder of the full repayment and redemption of
such Industrial Revenue Bonds by no later than [__], (iv) repay all principal
and accrued interest outstanding under that certain promissory note issued to
Arnos Corp. dated December 17, 2004 (the "Arnos Note"), (v) repay all principal
and outstanding interest outstanding under that certain promissory note issued
to ACF Industries Holding Corp. dated January 1, 2005 (together with the Arnos
Note, the "Affiliate Notes"), (vi) complete the Merger, (vii) issue to Xxxxx X.
Xxxxx [__] shares of common stock pursuant an agreement between the Company and
Xxxxx X. Xxxxx dated November 18, 2005 (the "Xxxxx Stock Xxxxx"), (viii) redeem
[82,055] shares of the Old ARI's new preferred stock, $0.01 par value per share
(the "Preferred Stock Redemption"); the forgoing clauses are each referred to as
a "Concurrent Transaction" and collectively referred to as the "Concurrent
Transactions."
Old ARI and New ARI have prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "Act"), with the Commission
registration statements on Form S-1 (File Nos. 333-130284 and No. 333-128177),
including a prospectus, relating to the registration of the Shares under the
Act.
Old ARI and New ARI have furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
relating to the Shares. Except where the context otherwise requires,
"Preliminary Prospectus," as used herein, means each such preliminary
prospectus, in the form so furnished.
Except where the context otherwise requires, "Registration
Statement," as used herein, means the registration statement, as amended at the
time of such registration statement's effectiveness for purposes of Section 11
of the Act, as such section applies to the respective Underwriters (the
"Effective Time"), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any
information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act and deemed, pursuant to
Rule 430A under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to register the offer
and sale of Shares pursuant to Rule 462(b) under the Act.
Except where the context otherwise requires, "Prospectus," as used
herein, means the prospectus, in the form filed by New ARI with the Commission
pursuant to Rule 424(b) under the Act on or before the second business day after
the date hereof (or such earlier time as may be required under the Act) or, if
no such filing is required, the form of final prospectus included in the
Registration Statement at the time it became effective under the Act, in each
case in the form furnished by New ARI to you for use by the Underwriters and by
dealers in connection with the offering of the Shares.
"Permitted Free Writing Prospectuses," as used herein, means the
documents listed on Schedule B attached hereto "and each "road show" (as defined
in Rule 433 under the Act), if any, related
to the offering of the Shares contemplated hereby that is a "written
communication" (as defined in Rule 405 under the Act) (each such road show, a
"Road Show")".
"Disclosure Package," as used herein, means any Preliminary
Prospectus together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any.
For purposes of this Agreement, all references to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"). As used herein, "business day" shall mean a day on
which The Nasdaq National Market ("Nasdaq") is open for trading.
New ARI has prepared and filed, in accordance with Section 12 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), a registration statement (as may
be amended prior to the time of execution of this Agreement, the "Exchange Act
Registration Statement") on Form 8-A (File No. [____]) under the Exchange Act to
register, under Section 12(g) of the Exchange Act, the class of securities
consisting of the Common Stock.
New ARI and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, New ARI
agrees to issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from New ARI the
respective number of Firm Shares (subject to such adjustments you may determine
to avoid fractional shares) which bears the same proportion to the number of
Firm Shares to be sold by New ARI as such number of Firm Shares set forth
opposite the name of such Underwriter in Schedule A attached hereto, subject to
adjustment in accordance with Section 8 hereof, in each case at a purchase price
of $[o] per Share.
New ARI is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, New ARI hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to New ARI for the Firm Shares. This option may be exercised by UBS Securities
LLC ("UBS") on behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date hereof, upon notice to
New ARI. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "Additional Time of Purchase"); provided, however, that the Additional
Time of Purchase shall not be earlier than the Time of Purchase (as defined
below), but it may be on the same day as the Time of Purchase, nor earlier than
the second business day after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. The number of Additional Shares to be sold by
New ARI to each Underwriter shall be the number which bears the same proportion
to the aggregate number of Additional Shares being purchased from New ARI at the
Additional Time of Purchase as the number of Additional Shares set
forth opposite the name of such Underwriter on Schedule A hereto bears to the
total number of Additional Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares), subject to adjustment in
accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to, or as directed in writing by, New ARI by Federal Funds
wire transfer, against delivery of the certificates for the Firm Shares to you
through the facilities of The Depository Trust Company (DTC) for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 10:00
a.m., New York City time, on [o], 2006 (unless another time shall be agreed to
by you and New ARI or unless postponed in accordance with the provisions of
Section 8 hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called the "Time of Purchase." Electronic transfer of the
Firm Shares shall be made to you at the Time of Purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the Additional Time of Purchase to New ARI in the same manner and at the
same office as the payment for the Firm Shares. Transfer of the Additional
Shares shall be made to you at the Additional Time of Purchase in such names and
in such denominations as you shall specify and in the same manner as the Firm
Shares.
Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Shearman &
Sterling LLP at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:00 A.M., New York
City time, on the date of the closing of the purchase of the Firm Shares or the
Additional Shares, as the case may be.
3. Representations and Warranties of New ARI and Old ARI. New ARI
and Old ARI represent and warrant to and agree with each of the Underwriters
that:
(a) the Registration Statement, including any registration statement
filed with the Commission pursuant to Rule 462(b) under the Act and any
post-effective amendment thereto, has been declared effective under the
Act; and no stop order of the Commission preventing or suspending the use
of any Preliminary Prospectus or Permitted Free Writing Prospectus or the
effectiveness of the Registration Statement is in effect and no
proceedings for such purpose have been instituted or, to New ARI's or Old
ARI's knowledge, are threatened or contemplated by the Commission and any
request on the part of the Commission for additional information has been
complied with; the Exchange Act Registration Statement has become
effective as provided in Section 12 of the Exchange Act; each Preliminary
Prospectus (except for the preliminary prospectus included in the
Registration Statement filed with the Commission on October 5, 2005)
complied, at the time it was filed with the Commission, and complies as of
the date hereof, in all material respects with the requirements of the
Act; at no time during the period that begins on the earlier of the date
of such Preliminary Prospectus and the date such Preliminary Prospectus
was filed with the Commission and ends at the Time of Purchase and any
Additional Time of Purchase did or will any Preliminary Prospectus, as
then amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and at no time during such period did or will
any Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; the Registration Statement, including any registration
statement filed with the Commission pursuant to Rule 462(b) under the Act
and any post-effective amendment thereto, complied when it became
effective, complies as of the date
hereof and, as amended or supplemented, if applicable, will comply, at the
Time of Purchase and any Additional Time of Purchase and at all times
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in all
material respects, with the requirements of the Act and any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement have been and will be so
described or filed; the conditions to the use of Form S-1 have been
satisfied; the Registration Statement (other than with respect to matters
of fact relating to parties other than Old ARI, New ARI or the
Subsidiaries contained in or referred to in the agreements filed as
exhibits thereto) did not, as of the Effective Time, and will not, at the
Time of Purchase and any Additional Time of Purchase, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Prospectus will comply as of its date, the date that it is
filed with the Commission, and at the Time of Purchase and any Additional
Time of Purchase and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, in all material respects, with the requirements of the Act
(including, without limitation, Section 10(a) of the Act); at no time
during the period that begins on the earlier of the date of the Prospectus
and the date the Prospectus is filed with the Commission and ends at the
later of the Time of Purchase, the latest Additional Time of Purchase, if
any, and the end of the period during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; at no time
during the period that begins on the date of such Permitted Free Writing
Prospectus and ends at the Time of Purchase and any Additional Time of
Purchase did or will any Permitted Free Writing Prospectus include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that New ARI or Old ARI makes no warranty or representation with
respect to any statement contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any Permitted Free Writing
Prospectus in reliance upon and in conformity with information concerning
an Underwriter and furnished in writing by or on behalf of such
Underwriter through you to Old ARI or New ARI expressly for use in such
Preliminary Prospectus, the Registration Statement, the Prospectus or such
Permitted Free Writing Prospectus;
(b) prior to the execution of this Agreement, New ARI and Old ARI
have not, directly or indirectly, offered or sold any Shares by means of
any "prospectus" (within the meaning of the Act) or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of
the Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; New ARI and Old ARI have not,
directly or indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in material compliance with Rules 164 and 433
under the Act; assuming that such Permitted Free Writing Prospectus is
accompanied or preceded by the most recent Preliminary Prospectus that
contains a price range or the Prospectus, as the case may be, and that
such Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after such
Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d)
under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 or Rule 433 (without reliance on subsections (b),
(c) and (d) of Rule 164); the Preliminary Prospectus dated [o] is a
prospectus
that, other than by reason of Rule 433 or Rule 431 under the Act,
satisfies the requirements of Section 10 of the Act, including a price
range where required by rule; neither New ARI nor the Underwriters are
disqualified, by reason of subsection (f) or (g) of Rule 164 under the
Act, from using, in connection with the offer and sale of the Shares,
"free writing prospectuses" (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; New ARI is not an "ineligible
issuer" (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with
respect to the offering of the Shares contemplated by the Registration
Statement; the parties hereto agree and understand that the content of any
and all "road shows" developed with the consent of Old ARI and New ARI (as
defined in Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of New ARI and Old ARI; New ARI
and Old ARI have caused there to be made available at least one version of
a "bona fide electronic road show" (as defined in Rule 433 under the Act)
in a manner that, pursuant to Rule 433(d)(8)(ii) under the Act, causes New
ARI not to be required, pursuant to Rule 433(d) under the Act, to file,
with the Commission, any such Road Show;
(c) Old ARI has an authorized, issued and outstanding capitalization
as set forth under the heading "Actual" in the section of the Registration
Statement, the Preliminary Prospectus and the Prospectus entitled
"Capitalization" (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus) and, as of the Time of
Purchase and the Additional Time of Purchase, as the case may be after
giving effect to the Offering and the Concurrent Transactions, New ARI
shall have an authorized and outstanding capitalization as set forth under
the heading "As Adjusted" in the section of the Registration Statement,
the Preliminary Prospectus and the Prospectus (and any similar sections or
information, if any, contained in any Permitted Free Writing Prospectus)
entitled "Capitalization" (subject, in each case, to the issuance of
shares of Common Stock upon exercise of stock options disclosed as
outstanding in the Registration Statement, the Preliminary Prospectus and
the Prospectus and excluding the shares of Common Stock available for
future issuance under the equity compensation plan described in the
Registration Statement, the Preliminary Prospectus and the Prospectus),
all of the issued and outstanding capital stock of New ARI is owned by Old
ARI; Old ARI has redeemed the single share of its mandatorily redeemable
preferred stock, $0.01 par value per share prior to the consummation of
the Merger; all of the issued and outstanding shares of capital stock of
New ARI have been duly authorized and validly issued and are fully paid
and non-assessable, have been issued in compliance with all federal and
state securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; and the
Shares are duly listed, and admitted and authorized for trading subject to
official notice of issuance and evidence of satisfactory distribution, on
Nasdaq; and on or prior to the Time of Purchase, New ARI has consummated
the Merger in the manner set forth in the Registration Statement, the
Preliminary Prospectus and the Prospectus; and the Certificate of Merger
of New ARI and the bylaws of New ARI, each in the form filed as an exhibit
to the Registration Statement, have been heretofore duly authorized and
approved in accordance with the Delaware General Corporation Law and shall
become effective and in full force and effect on or before the Time of
Purchase;
(d) New ARI and Old ARI have been duly incorporated and are validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, the Preliminary
Prospectus, the Prospectus and any Permitted Free Writing Prospectus to
execute and deliver this Agreement and to issue, sell and deliver the
Shares as contemplated herein and to perform its other obligations under
this Agreement and to consummate the transactions contemplated in the
Registration Statement, the Preliminary Prospectus, the Prospectus and any
Permitted Free Writing Prospectus (including without limitation, the
Concurrent Transactions);
(e) New ARI and Old ARI are duly qualified to do business as a
foreign corporation and are in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
or in good standing would not, individually or in the aggregate, have a
material adverse effect on the business, properties, condition (financial,
or otherwise), or results of operations or prospects of New ARI, Old ARI
and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect");
(f) As of the date hereof, New ARI has no subsidiaries, and Old ARI
has no subsidiaries either direct or indirect, other than the subsidiaries
listed in Schedule C (each a "Subsidiary" and collectively, the
"Subsidiaries"); other than the capital stock of the Subsidiaries, Old ARI
does not, and following the Merger New ARI will not, own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and
correct copies of the certificates of incorporation and the by-laws of
each of Old ARI and New ARI and the Subsidiaries and all amendments
thereto have been made available to you, and except as set forth in the
exhibits to the Registration Statement no changes therein will be made
subsequent to the date hereof and prior to the Time of Purchase or, if
later, the Additional Time of Purchase; each Subsidiary that is a
"significant subsidiary," as that term is defined in Rule 1-02(w) of
Regulation S-X under the Act (each such Subsidiary, a "Material
Subsidiary") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus, the Prospectus and any
Permitted Free Writing Prospectus; each Material Subsidiary is duly
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or
in the aggregate, have a Material Adverse Effect; each Subsidiary is in
compliance in all respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions, except where the
failure to be in compliance would not, individually or in the aggregate,
have a Material Adverse Effect; all of the outstanding shares of capital
stock of each of the Subsidiaries including New ARI, have been duly
authorized and validly issued, are fully paid and non-assessable, have
been issued in compliance with all applicable securities laws, were not
issued in violation of any preemptive right, resale right, right of first
refusal or similar right and are owned prior to the Merger by Old ARI and
following the Merger by New ARI and are not subject to any security
interest, other encumbrance or adverse claims that would not, individually
or in the aggregate, have a Material Adverse Effect; and no options,
warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligation into shares of capital
stock or ownership interests in the Subsidiaries are outstanding;
(g) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights of
first refusal and similar rights and the issuance of the Shares is not
subject to preemptive or other similar rights;
(h) the capital stock of New ARI, including the Shares, and of Old
ARI conforms in all material respects to the description thereof contained
in the Registration Statement, the Preliminary Prospectus, the Prospectus
and any Permitted Free Writing Prospectus as described in the section
"Description of Capital Stock" and the form of specimen certificate for
the Shares complies with applicable law and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and
delivered by New ARI and Old ARI;
(j) none of New ARI, Old ARI or any of the Subsidiaries is in breach
or violation of or in default under (nor has any event occurred which with
notice, lapse of time or both would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the
repurchase, redemption (other than the redemption of one share of
mandatory redeemable preferred stock, $0.01 par value, of Old ARI held by
Xxxx X. Icahn) or repayment of all or a part of such indebtedness under)
(i) its respective charter or by-laws, or (ii) any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which New ARI, Old ARI or any of the Subsidiaries is a party
or by which any of them or any of their respective properties may be bound
or affected, or (iii) any federal, state, local or foreign law, regulation
or rule applicable to Old ARI, New ARI or the Subsidiaries, or (iv) any
rule or regulation of Nasdaq applicable to New ARI, Old ARI or the
Subsidiaries, or (v) any decree, judgment or order applicable to New ARI,
Old ARI or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v), for
any breach, violation or default, as applicable, that would not,
individually or in the aggregate have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the issuance and
sale of the Shares and the consummation of the transactions contemplated
hereby and contemplated in the Registration Statement, the Preliminary
Prospectus, the Prospectus and any Permitted Free Writing Prospectus
(including, without limitation, the Concurrent Transactions) will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of time
or both would result in any breach or violation of or constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (1) the charter or
by-laws of New ARI, Old ARI or any of the Subsidiaries, or (2) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness any license, lease, contract or other agreement
or instrument to which New ARI, Old ARI or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound or affected, or (3) any federal, state, local or foreign law,
regulation or rule applicable to New ARI, Old ARI or the Subsidiaries, or
(4) any decree, judgment or order applicable to New ARI, Old ARI or any of
the Subsidiaries, or (5) any rule or regulation of Nasdaq, except in the
case of the foregoing clauses (2), (4) and (5), for any breach, violation
or default, as applicable, that would not, individually or in the
aggregate have a Material Adverse Effect;
(k) no approval, authorization, consent, qualification, decree or
order of or filing with any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares by New ARI or the
consummation by New ARI or Old ARI of the Concurrent Transactions
contemplated hereby and as contemplated in the Registration Statement, the
Preliminary Prospectus, the
Prospectus and any Permitted Free Writing Prospectus (including, without
limitation, the Concurrent Transactions) except for (i) registration of
the Shares under the Act, which has been or will be effected, (ii) any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the NASD, (iii) any
necessary notice to the Pension Benefit Guarantee Corporation as described
in the Prospectus and (iv) and the filing by Old ARI of financing
statements under the Uniform Commercial Code as in effect in the State of
New York (the "UCC") in connection with the discharge of any liens
pursuant to the repayment of the Credit Facility;
(l) except as set forth in the Registration Statement, the
Preliminary Prospectus, the Prospectus and any Permitted Free Writing
Prospectus, (i) no person has the right, contractual or otherwise, to
cause New ARI or Old ARI to issue or sell to it any shares of Common Stock
or shares of any other capital stock or other equity interests of New ARI
or Old ARI, as the case may be, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase (A)
from New ARI or Old ARI any shares of Common Stock or shares of any other
capital stock or other equity interests of New ARI or Old ARI and (B) to
the knowledge of New ARI or Old ARI any shares of Common Stock or shares
of any other capital stock or other equity interests of New ARI or Old
ARI, and (iii) no person has the right to act as an underwriter or as a
financial advisor to New ARI or Old ARI in connection with the offer and
sale of the Shares, and (iv) no person has the right, contractual or
otherwise, to cause New ARI or Old ARI to register under the Act any
shares of Common Stock or shares of any other capital stock or other
equity interests of New ARI or Old ARI, or to include any such shares or
interests in the Registration Statement or the offering contemplated
thereby, in the case of each of the foregoing clauses (i), (ii), (iii) and
(iv) whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby
or otherwise;
(m) each of New ARI, Old ARI and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business except where such failure to possess any such license,
authorization, consent or approval or make any such filings would not,
individually or in the aggregate have a Material Adverse Effect; none of
New ARI, Old ARI or any of the Subsidiaries is in violation of, or in
default under, or has received notice of any proceedings relating to
revocation or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to New ARI, Old ARI or any of
the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(n) there are no actions, suits, claims, investigations or
proceedings pending or to the knowledge of New ARI and Old ARI threatened
or contemplated, to which New ARI, Old ARI or any of the Subsidiaries or,
to the knowledge of New ARI and Old ARI, any of their respective directors
or officers in their capacities as such directors and officers, is or
would be a party or of which any of their respective properties is or
would be subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body, court
authority or agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect or preventing
consummation of the transactions contemplated hereby (including without
limitation, the Concurrent Transactions) or as otherwise disclosed in the
Registration Statement the Preliminary Prospectus and the Prospectus;
(o) each of Xxxxx Xxxxxxxx LLP and KPMG LLP, whose reports on the
consolidated financial statements of Old ARI and the Subsidiaries are
filed with the Commission as part of the Registration Statement, the
Preliminary Prospectus and the Prospectus, is an independent registered
public accounting firm as required by the Act and by the rules of the
Public Company Accounting Oversight Board;
(p) the consolidated financial statements included in the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, together with the related notes and
schedules, present fairly in all material respects the consolidated
financial position of Old ARI and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of Old
ARI and the Subsidiaries for the periods specified and have been prepared
in compliance with the requirements of the Act in all material respects
and in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved subject to, in the case of
the financial statements for the nine months ended September 30, 2004 and
2005, only normal, recurring adjustments; the other financial data set
forth in the Registration Statement, the Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus is fairly presented
and prepared in all material respects on a basis consistent with the
financial statements of Old ARI included in the Registration Statement,
the Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus; there are no financial statements (historical or pro forma)
that are required to be included in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus that are not included as required, including financial
statements of New ARI;
(q) subsequent to the time of execution of this Agreement or, if
earlier, the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, there has not been (i) any material
adverse change, or any development involving a prospective material
adverse change, in the business, properties, management, financial
condition or results of operations of New ARI, Old ARI and the
Subsidiaries taken as a whole, (ii) any obligation, direct or contingent
(including any off-balance sheet obligations), incurred by New ARI, Old
ARI or the Subsidiaries, which is material to New ARI, Old ARI and the
Subsidiaries taken as a whole except as contemplated in the Registration
Statement, the Preliminary Prospectus, the Prospectus or any Permitted
Free Writing Prospectus, (iii) any change in the capital stock or material
changes in outstanding indebtedness of New ARI, Old ARI or the
Subsidiaries except as contemplated in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus or (iv) any dividend or distribution of any kind declared, paid
or made on the capital stock of New ARI, Old ARI except as contemplated in
the Registration Statement, the Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus;
(r) New ARI and Old ARI have obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), substantially in the
form set forth as Exhibit A hereto, of each entity or individual listed in
Schedule D;
(s) none of New ARI, Old ARI, or any Subsidiary is an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and, after giving effect to the offering and
sale of the Shares and at no time during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, none of New ARI, Old ARI, or any Subsidiary will be an investment
company or an entity controlled by an investment company; and upon the
application of the proceeds from the sale of the Shares in the manner
contemplated by
the Registration Statement, the Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus as described in the section "Use of
Proceeds," none of New ARI, Old ARI, or any Subsidiary will be an
investment company or an entity controlled by an investment company;
(t) except as disclosed in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, New ARI, Old ARI and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus as being owned by each of them, free and
clear of all liens, claims, security interests or other encumbrances,
except where the failure to possess good and marketable title would not,
individually or in the aggregate have a Material Adverse Effect; all the
property described in the Registration Statement, the Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus as
being held under lease by New ARI, Old ARI or a Subsidiary is held thereby
under valid, subsisting and enforceable leases, assuming the due and valid
execution by the lessors thereto, except where the failure to have valid,
subsisting and enforceable leases would not, individually or in the
aggregate have a Material Adverse Effect;
(u) Old ARI and the Subsidiaries own and following the Merger New
ARI and the Subsidiaries will own or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames,
service names, copyrights, trade secrets and other proprietary information
described in the Registration Statement, the Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus (collectively,
"Intellectual Property") as being owned or licensed by them or which are
necessary for the conduct of their respective businesses, except where the
failure to own, license or have such rights would not, individually or in
the aggregate, have a Material Adverse Effect; (i) to the knowledge of New
ARI and Old ARI, there are no third parties who have, or will be able to
establish, rights to any Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to New
ARI; (ii) to New ARI's knowledge, there is no infringement by third
parties of any Intellectual Property; (iii) there is no pending or, to New
ARI's knowledge, threatened action, suit, proceeding or claim by others
challenging New ARI's rights in or to any Intellectual Property; (iv)
there is no pending or, to New ARI's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Intellectual Property, and to New ARI's knowledge, there are no facts
which could form a reasonable basis for any such claim; and (v) there is
no pending or, to New ARI's knowledge, threatened action, suit, proceeding
or claim by others that New ARI infringes or otherwise violates any
patent, trademark, copyright, trade name, service name, trade secret or
other proprietary rights of others, and to New ARI's knowledge there are
no facts which could form a reasonable basis for any such action, suit
proceeding or claim;
(v) except for matters which would not, individually or in the
aggregate, have a Material Adverse Effect, (i) there is (A) no unfair
labor practice complaint pending or, to the knowledge of New ARI and Old
ARI, threatened against New ARI, Old ARI or any of the Subsidiaries before
the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements is
pending or, to the knowledge of New ARI and Old ARI, threatened, (B) no
strike, labor dispute, slowdown or stoppage pending or, to the knowledge
of New ARI or Old ARI, threatened against New ARI, Old ARI or any of the
Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of New ARI, Old ARI or any of the Subsidiaries,
and (ii) to the knowledge of New ARI and Old ARI, (A) no union organizing
activities are currently taking place concerning the employees of the New
ARI, Old ARI or any of the Subsidiaries and (B) there has been no
violation of any federal, state, local or foreign law relating to
discrimination
in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of
1974 ("ERISA") or the rules and regulations promulgated thereunder
concerning the employees of the New ARI, Old ARI or any of the
Subsidiaries, except where such violation would not, individually or in
the aggregate, have a Material Adverse Effect;
(w) New ARI, Old ARI and the Subsidiaries and their properties,
assets and operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or to hold
such permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; except as would not,
individually or in the aggregate, have a Material Adverse Effect, there
are no past, present or, to the knowledge of New ARI and Old ARI,
reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably
be expected to give rise to any costs or liabilities to New ARI, Old ARI
or the Subsidiaries under, or to interfere with or prevent compliance by
New ARI or the Subsidiaries with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect, none of
New ARI, Old ARI or any of the Subsidiaries (i) to the knowledge of New
ARI and Old ARI, is the subject of any investigation, (ii) has received
any written notice or claim, (iii) is a party to or affected by any
pending, or to the knowledge of New ARI and Old ARI, threatened action,
suit or proceeding, (iv) is bound by any judgment, decree or order or (v)
has entered into any agreement, in each case relating to any alleged
material violation of any Environmental Law or any actual or alleged
release or threatened material release or cleanup at any location of any
Hazardous Materials (as defined below) (as used herein, "Environmental
Law" means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to
health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the
distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous Materials" means any material
(including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(x) all material tax returns required to be filed by New ARI, Old
ARI and each of the Subsidiaries have been filed; all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from New ARI, Old ARI and each
of the Subsidiaries have been paid, other than those that are immaterial
in amount or those being contested in good faith and for which adequate
reserves have been provided;
(y) New ARI, Old ARI and each of the Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses as
New ARI and Old XXX xxxxx adequate to protect New ARI, Old ARI and the
Subsidiaries and their businesses; all such insurance is fully in force on
the date hereof except where the failure to maintain such insurance would
not individually or the aggregate have a Material Adverse Effect;
(z) none of New ARI, Old ARI or any of the Subsidiaries has
sustained since the date of the last audited financial statements included
in the Registration Statement, the Preliminary Prospectus and the
Prospectus any loss or interference with its respective business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any
labor dispute or court or governmental action, order or decree, except for
any loss or interference which would not, individually or in the
aggregate, have a Material Adverse Effect;
(aa) none of New ARI, Old ARI or any Subsidiary has sent or received
any communication regarding termination of, or intent not to renew, any of
the contracts or agreements referred to or described in any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or
referred to or described in, or filed as an exhibit to, the Registration
Statement except where such termination or nonrenewal would not
individually or in the aggregate have a Material Adverse Effect, and no
such termination or non-renewal has been threatened by the Company or, to
the Company's knowledge, by any other party to any such contract or
agreement except where such termination or nonrenewal would not
individually or in the aggregate have a Material Adverse Effect; as a
result of the Merger, neither New ARI, Old ARI nor any Subsidiary expect
to receive any such communication relating to the termination or
non-renewal of such contracts except where such termination or nonrenewal
would not individually or in the aggregate have a Material Adverse Effect;
(bb) New ARI, Old ARI and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance 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;
(cc) to the extent that it is required to do so as of the date of
this Agreement and as of the Time of Purchase, New ARI and Old ARI have
established and maintain disclosure controls and procedures (as such term
is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and "internal
control over financial reporting" (as such terms is defined in Rule 13a-15
and 15d-15 under the Exchange Act; such disclosure controls and procedures
are designed to ensure that material information relating to New ARI and
Old ARI, including its consolidated subsidiaries, is made known to New
ARI's and Old ARI's Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; Old ARI's auditors and the Board of Directors have been
advised by Old ARI and New ARI of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect New
ARI's or Old ARI's ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in New ARI's or Old ARI's
internal controls; any material weaknesses in internal controls have been
identified for Old ARI's auditors;
(dd) since July 30, 2002, New ARI and Old ARI have not, directly or
indirectly, including through any Subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the form
of a personal loan, to or for any director or executive officer of New ARI
and Old ARI, or to or for any family member or affiliate of any director
or executive officer of New ARI and Old ARI; or (ii) made any material
modification, including any renewal thereof, to any term of any personal
loan to any director or executive officer of New ARI and Old ARI, or any
family member or affiliate of any director or executive officer, which
loan was outstanding on July 30, 2002;
(ee) any statistical and market-related data included in the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus are based on or derived from sources
that New ARI and Old ARI reasonably believe to be reliable and accurate;
(ff) none of New ARI, Old ARI or any of the Subsidiaries or to the
knowledge of New ARI and Old ARI any of their respective directors,
officers, affiliates or controlling persons has taken, directly or
indirectly, any action designed, or which has constituted, under the
Exchange Act or otherwise, the stabilization or manipulation of the price
of any security of New ARI to facilitate the sale or resale of the Shares;
(gg) to the knowledge of New ARI and Old ARI, there are no
affiliations or associations between any member of the NASD and any of New
ARI's or Old ARI's executive officers, directors or 5% or greater
securityholders, except as set forth in the Registration Statement, the
Preliminary Prospectus, the Prospectus, any Permitted Free Writing
Prospectus and Schedule E to this Agreement;
(hh) New ARI and Old ARI and their respective officers and directors
(in their capacities as such) are in compliance in all material respects
with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations of the Commission and Nasdaq promulgated
thereunder;
(ii) the agreements, contracts or instruments filed with the
Commission as exhibits to the Registration Statement and listed in the
Exhibit Index contained in the Registration Statement (the "Material
Agreements") are the only material agreements, contracts or instruments
that are binding upon Old ARI, New ARI and the Subsidiaries that are
material to the operation of the business of Old ARI, New ARI and the
Subsidiaries, taken as a whole and required to be disclosed under
Regulation S-K promulgated under the Act;
(jj) as of the date hereof, to the knowledge of New ARI and Old ARI,
there is no fact or circumstance that will prevent New ARI or Old ARI from
consummating each of the Concurrent Transactions, including the Merger;
(kk) the Registration Statement, the Preliminary Prospectus, the
Prospectus and any Permitted Free Writing Prospectus comply, in all
material respects, and any further amendments or supplements thereto will
comply, in all material respects, with any applicable laws or regulations
of any Canadian jurisdiction in which the Prospectus, any Preliminary
Prospectus or any Permitted Free Writing Prospectus is distributed in
connection with the Directed Share Program; and no approval,
authorization, consent or order of or filing with any governmental or
regulatory commission, board, body, authority or agency, other than those
obtained, is required in connection with the offering of the Reserved
Shares in any jurisdiction where the Reserved Shares are being offered;
(ll) New ARI and Old ARI have not offered, or caused the
Underwriters to offer, Reserved Shares to any person pursuant to the
Directed Share Program with the intent to influence unlawfully (i) a
customer or supplier of New ARI, Old ARI or any of the Subsidiaries to
alter the customer's or supplier's level or type of business with New ARI
or any of the Subsidiaries, or (ii) a trade journalist or publication to
write or publish favorable information about New ARI or any of the
Subsidiaries or any of their respective products or services.
(mm) the Certificate of Merger to be filed on or prior to the Time
of Purchase is in the form attached hereto as Exhibit D has been duly
authorized and executed pursuant to this
Certificate of Merger, upon filing with the Secretary of State of Delaware
and Missouri, all of the property, rights, privileges and powers of Old
ARI will vest in New ARI, and all debts, liabilities, obligations,
restrictions, disabilities and duties of Old ARI, including its
obligations under this Agreement, will become the debts, liabilities,
obligations, restrictions, disabilities and duties of New ARI; and
(nn) Prior to the time of the Merger New ARI had no subsidiaries
and, other than relating solely to matters related to the filing of the
Registration Statement, had no operations and conducted no business.
In addition, any certificate signed by any officer of New ARI, Old
ARI or any of the Subsidiaries and delivered to the Underwriters or counsel for
the Underwriters in connection with the offering of the Shares shall be deemed
to be a representation and warranty by New ARI, Old ARI or such Subsidiary, as
the case may be, as to matters covered thereby, to each Underwriter.
4. Certain Covenants of New ARI and Old ARI. New ARI and Old
ARI hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states [or other jurisdictions] as you
may reasonably designate and to maintain such qualifications in effect so
long as you may reasonably request for the distribution of the Shares,
provided that New ARI shall not be required to qualify as a foreign
corporation, subject itself to taxation in any foreign jurisdiction or to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by New ARI of any
notification with respect to the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if New ARI shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
reasonably request in writing for the purposes of complying with the Act;
in case any Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar rule) a
prospectus after the nine-month period referred to in Section 10(a)(3) of
the Act in connection with the sale of the Shares, New ARI will prepare,
at its expense, as promptly as practicable, upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be
necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act;
(c) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or any post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, New ARI and Old ARI will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
reasonably possible, and New ARI and Old ARI will advise you of its
intention to file or prepare any amendment to the Registration Statement
or any amendment or supplement to the Prospectus, and New ARI and Old ARI
will advise you promptly and, if requested by you, will confirm such
advice in writing, (i) when the Registration Statement and any such
post-effective amendment thereto has become effective, and (ii) if Rule
430A under the Act is used, when the Prospectus is
filed with the Commission pursuant to Rule 424(b) under the Act (which New
ARI and Old ARI agrees to file in accordance with such Rule);
(d) to advise you as promptly as practicable, confirming such advice
in writing, of any request by the Commission for amendments or supplements
to the Registration Statement, Exchange Act Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its reasonable efforts to obtain the
lifting or removal of such order as soon as practicably possible; to
advise you as promptly as practicable of any proposal to amend or
supplement the Registration Statement, the Exchange Act Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted
Free Writing Prospectus and to provide you and Underwriters' counsel
copies of any such documents for review and comment a reasonable amount of
time prior to any proposed filing and to file no such amendment or
supplement to which you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file as promptly as
practicable all reports and any definitive proxy or information statement
required to be filed by New ARI with the Commission in order to comply
with the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery (whether physically or through compliance with Rule
172 under the Act or any similar rule) of a prospectus is required in
connection with the offering or sale of the Shares and to provide you with
a copy of such reports and statements and other documents to be filed by
New ARI pursuant to Section 13, 14 or 15(d) of the Exchange Act during
such prospectus delivery period a reasonable amount of time prior to any
proposed filing, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act and pay the applicable fees in
accordance with the Act;
(g) to advise the Underwriters as promptly as practicable of the
happening of any event actually known by New ARI or Old ARI within the
time during which a prospectus relating to the Shares is required to be
delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) under the Act which could require the making
of any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and, during
such time, subject to Section 4(d) hereof, to prepare and furnish, at New
ARI's expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change;
(h) to make generally available to its security holders, an earnings
statement of New ARI (which will satisfy the provisions of Section 11(a)
of the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act) as soon as is reasonably practicable after the termination
of such twelve-month period but not later than fifteen months after the
effective date of the Registration Statement;
(i) to furnish to its stockholders in accordance with the
requirements of the Exchange Act after the end of each fiscal year an
annual report (including a consolidated balance sheet and statements of
income, stockholders' equity and cash flow of New ARI and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report
thereon of
nationally recognized independent certified public accountants duly
registered with Public Company Accounting Oversight Board (the "PCAOB");
(j) to the extent not otherwise available on XXXXX and upon request
in writing, to furnish promptly to you and to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which New ARI and Old
ARI shall send to its stockholders or shall from time to time publish or
publicly disseminate, and (ii) copies of all annual, transition, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K,
or such other similar forms as may be designated by the Commission;
(k) to furnish to you, upon request, prior to the Time of Purchase
and any Additional Time of Purchase, as the case may be, but not later
than two business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any,
of New ARI, Old ARI and the Subsidiaries which have been read by the
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 6(b) hereof;
(l) to apply the net proceeds from the sale of the Shares by New ARI
in the manner set forth under the caption "Use of proceeds" in the
Prospectus and to file such reports with the Commission with respect to
the sale of the Shares and the application of the proceeds therefrom as
may be required by Rule 463 under the Act;
(m) New ARI agrees to pay all costs, expenses and fees in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares including any stock or transfer taxes and
stamp or similar duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iii) the qualification of the Shares for
offering and sale under state or foreign laws and the determination of
their eligibility for investment under state law as aforesaid (including
the reasonable and documented legal fees and filing fees and other
disbursements of counsel for the Underwriters incurred in connection with
such qualifications and determinations which shall not exceed $7,500) and
the furnishing of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (iv) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on Nasdaq
and any registration thereof under the Exchange Act, (v) any filing for
review of the public offering of the Shares by the NASD, including the
reasonable and documented legal fees and filing fees and other
disbursements of counsel to the Underwriters, which shall not exceed
$25,000, incurred in connection with such filing, (vi) the fees and
disbursements of any transfer agent or registrar for the Shares, (vii) the
costs and expenses of New ARI and Old ARI relating to presentations or
meetings undertaken in connection with the marketing of the offering and
sale of the Shares to prospective investors and the Underwriters' sales
forces, 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,
travel, lodging and other expenses incurred by the officers of New ARI and
Old ARI and any such consultants, and one half of the the cost of any
aircraft chartered in connection with the road show; provided, that, the
costs for any consultants engaged or aircraft chartered in connection with
the road show shall be incurred with New ARI's consent, (viii) the offer
and sale of the Reserved Shares, including all costs and expenses of
UBS-FinSvc and the Underwriters, including the reasonable and documented
fees and disbursements of counsel for the Underwriters in an amount not to
exceed $8,000, (ix) the costs and expenses of qualifying the Shares for
inclusion in the book-entry
settlement system of the DTC, (x) the preparation and filing of the
Exchange Act Registration Statement, including any amendments thereto and
(xi) the performance of New ARI's other obligations hereunder;
(n) for a period of 180 days after the date hereof (the "Lock-Up
Period"), without the prior written consent of UBS and Bear, Xxxxxxx & Co.
Inc. ("Bear Xxxxxxx"), not to (i) sell, offer to sell, contract or agree
to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
and the rules and regulations of the Commission promulgated thereunder,
with respect to, any Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other rights
to purchase Common Stock or any other securities of New ARI or Old ARI
that are substantially similar to Common Stock, (ii) file or cause to be
declared effective a registration statement under the Act relating to the
offer and sale of any shares of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock or any other securities of New ARI or Old
ARI that are substantially similar to Common Stock, (iii) enter into any
swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock, or warrants or other rights to purchase Common Stock or any such
securities, whether any such transaction is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (iv)
publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, for (A) the registration
of the Shares and the sales to the Underwriters pursuant to this
Agreement, (B) issuances of Common Stock upon the exercise of options or
warrants disclosed as outstanding in the Registration Statement and the
Prospectus, (C) the filing of a registration statement relating to the
issuance of restricted shares or of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, (D) the issuance to Xxxxx X.
Xxxxx of [__] shares of Common Stock pursuant to the Xxxxx Stock Grant as
described in the Prospectus, (E) issuances or exchanges of Common Stock or
preferred stock pursuant to the Merger and (F) the issuance by New ARI of
shares of Common Stock in connection with acquisitions of other companies
up to an aggregate amount equal to 5% of New ARI's fully-diluted Common
Stock (measured as of the Time of Purchase and calculated in the manner
that New ARI will calculate its fully-diluted common stock in connection
with the preparation of its consolidated financial statements to be filed
with the SEC), provided that each recipient of such shares of Common Stock
agrees in writing to be subject to the restrictions as set forth in
Exhibit A; provided, however, that if (a) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) business days
before the last day of the Lock-Up Period and ends on the last day of the
Lock-Up Period, New ARI issues an earnings release or material news or a
material event relating to New ARI occurs; or (b) prior to the expiration
of the Lock-Up Period, New ARI announces that it will release earnings
results during the sixteen (16) day period beginning on the last day of
the Lock-Up Period, then the restrictions imposed by this Section 4(n)
shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which
the issuance of the earnings release or the material news or material
event occurs;
(o) to use its reasonable efforts to cause the Common Stock to
be listed for quotation on the Nasdaq;
(p) prior to the Time of Purchase or the Additional Time of
Purchase, as the case may be, to issue no press release or other similar
communications directly or indirectly and hold
no press conference with respect to New ARI, Old ARI or any Subsidiary,
the financial condition, results of operations, business, properties,
assets or liabilities of New ARI, Old ARI or any Subsidiary, or the
offering of the Shares, without your prior consent which shall not be
unreasonably withheld or delayed;
(q) to not take, directly or indirectly, any action designed to or
that would cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of New ARI or
Old ARI to facilitate the sale or resale of the Shares;
(r) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of New ARI, a registrar for the Common
Stock;
(s) to cause each Directed Share Participant that purchases over
$100,000 of Reserved Shares to execute a Lock-Up Agreement and otherwise
to cause the Reserved Shares to be restricted from sale, transfer,
assignment, pledge or hypothecation to such extent as may be required by
the NASD and its rules, and to direct the transfer agent to place stop
transfer restrictions upon such Reserved Shares during the Lock-Up Period
or any such longer period of time as may be required by the NASD and its
rules; and to comply with all applicable securities and other applicable
laws, rules and regulations in each jurisdiction in which the Reserved
Shares are offered in connection with the Directed Share Program;
(t) not, at any time at or after the execution of this Agreement, to
offer or sell any Shares by means of any "prospectus" (within the meaning
of the Act), or use any "prospectus" (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than
the Prospectus;
(u) to comply with Rule 433(g) of the Act; and
(v) prior to the consummation of the Merger, the Certificate of
Merger (as attached as Exhibit D hereto) will not be amended without the
prior written consent of UBS and Bear Xxxxxxx.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than (a) the termination of this Agreement
pursuant to the fifth paragraph of Section 8 hereof, (b) the default by one or
more of the Underwriters in its or their respective obligations hereunder or (c)
the occurrence of the conditions specified in Section 7(y)(i), (iii), (iv) and
(v), New ARI shall, in addition to paying the amounts described in Section 4(m)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of New ARI and Old ARI on the date hereof, at the
Time of Purchase and, if applicable, at the Additional Time of Purchase, the
performance by New ARI and Old ARI of its obligations hereunder and to the
following additional conditions precedent:
(a) New ARI shall furnish to you at the Time of Purchase and, if
applicable, at the Additional Time of Purchase, an opinion of (i) Xxxxx
Xxxxxxx Xxxxxxx Israels LLP, counsel for New ARI, addressed to the
Underwriters, and dated the Time of Purchase or the Additional Time of
Purchase, as the case may be, with reproduced copies for each of the other
Underwriters, reasonably satisfactory to Shearman & Sterling LLP, counsel
for the Underwriters and substantially in the form attached as Exhibit C-1
and (ii) Xxxxxxxxx Xxxxxxxx LLP, Missouri
counsel for Old ARI, addressed to the Underwriters, and dated the Time of
Purchase or the Additional Time of Purchase, as the case may be, with
reproduced copies for each of the other Underwriters, reasonably
satisfactory to Shearman & Sterling LLP, counsel for the Underwriters and
substantially in the form attached as Exhibit C-2.
(b) You shall have received from each of Xxxxx Xxxxxxxx LLP and KPMG
LLP letters each dated, respectively, the date of this Agreement, and with
respect to Xxxxx Xxxxxxxx LLP, the Time of Purchase and, if applicable,
the Additional Time of Purchase, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in substantially the forms
heretofore approved by representatives of the Underwriters.
(c) You shall have received at the Time of Purchase and, if
applicable, at the Additional Time of Purchase, the favorable opinion of
Shearman & Sterling LLP, counsel for the Underwriters, dated the Time of
Purchase or the Additional Time of Purchase, as the case may be, in a form
reasonably satisfactory to UBS and Bear Xxxxxxx.
(d) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed after the date hereof to
which you reasonably object in writing.
(e) The Registration Statement and the Exchange Act Registration
Statement shall become effective not later than 5:30 p.m. New York City
time on the date of this Agreement and if Rule 430A under the Act is used,
the Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act at or before 5:30 p.m., New York City time, on the
second full business day after the date of this Agreement and any
registration statement pursuant to Rule 462(b) under the Act required in
connection with the offering and sale of the Shares shall have been filed
and become effective no later than 10:00 P.M., New York City time, on the
date of this Agreement.
(f) Prior to the Time of Purchase, and, if applicable, the
Additional Time of Purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii)
the Preliminary Prospectus or the Prospectus and all amendments or
supplements thereto shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; (iv) no
Disclosure Package, and no amendment or supplement thereto, shall include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and (v) none of
the Permitted Free Writing Prospectuses, if any, shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(g) Between the time of execution of this Agreement and the Time of
Purchase or the Additional Time of Purchase, as the case may be, no
material adverse change or any development involving a prospective
material adverse change in the business, properties, management, financial
condition or results of operations of New ARI and the Subsidiaries taken
as a whole shall occur or become known.
(h) New ARI will, at the Time of Purchase and, if applicable, at the
Additional Time of Purchase, deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer to in substantially the
form attached as Exhibit B hereto.
(i) You shall have received the signed Lock-Up Agreements referred
to in Section 3(q) hereof.
(j) New ARI and Old ARI shall have furnished to you such other
documents and certificates of officers of New ARI and Old ARI as to the
accuracy and completeness of any statement in the Registration Statement,
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as of the Time of Purchase and, if applicable, the Additional
Time of Purchase, as you may reasonably request.
(k) The Shares shall have been approved for quotation on Nasdaq,
subject only to notice of issuance at or prior to the Time of Purchase or
the Additional Time of Purchase, as the case may be.
(l) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements of
the transactions, contemplated hereby.
(m) At the Time of Purchase, New ARI shall have (i) repaid or caused
to be repaid all outstanding amounts under the Credit Facility, the
Industrial Revenue Bonds and the Affiliate Notes, (ii) delivered or caused
to be delivered irrevocable instructions to the Trustee notifying the
holders thereunder of the full repayment and redemption of such Industrial
Revenue Bonds by no later than [__], (iii) entered into the New Credit
Facility and (iv) issued [__] shares of Common Stock to Xxxxx X. Xxxxx
pursuant to the Xxxxx Stock Grant, as each is described in the Prospectus
and (iv) effected the Preferred Stock Redemption.
(n) The Merger shall have been consummated pursuant to the terms of
the Certificate of Merger and all of the property, rights, privileges and
powers of Old ARI have vested in New ARI, and all debts, liabilities,
obligations, restrictions, disabilities and duties of Old ARI, including
its obligations under this Agreement, shall have become the debts,
liabilities, obligations, restrictions, disabilities and duties of New
ARI.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS and Bear Xxxxxxx or any
group of Underwriters (which may include UBS and Bear Xxxxxxx) which has agreed
to purchase in the aggregate at least 50% of the Firm Shares, if (x) since the
time of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary Prospectus,
the Prospectus and any Permitted Free Writing Prospectus, there has been any
material adverse change or any development involving a prospective material
adverse change in the business, properties, management, financial condition or
results of operations of New ARI, Old ARI and the Subsidiaries taken as a whole,
which would, in UBS' and Bear Xxxxxxx' judgment or in the judgment of such group
of Underwriters, make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectus, the
Prospectus and any
Permitted Free Writing Prospectus, or (y) since the time of execution of this
Agreement there shall have occurred: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq; (ii) a suspension or material limitation in
trading in New ARI's securities on Nasdaq; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in UBS' and Bear Xxxxxxx' judgment or in the
judgment of such group of Underwriters makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and
in the manner contemplated in the Registration Statement, the Preliminary
Prospectus, the Prospectus and any Permitted Free Writing Prospectus.
If UBS and Bear Xxxxxxx or any group of Underwriters elects to
terminate this Agreement as provided in this Section 7, New ARI and each other
Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because New ARI or Old
ARI shall be unable to comply with any of the terms of this Agreement, New ARI
or Old ARI shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(m), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to New ARI and Old ARI
under this Agreement (except to the extent provided in Section 9 hereof) or to
one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and
7 hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 6 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, New ARI agrees with the non-defaulting Underwriters that it will not
sell any Firm Shares hereunder unless all of the Firm Shares are purchased by
the Underwriters (or by substituted Underwriters selected by you with the
approval of New ARI or selected by New ARI with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by New ARI for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, New ARI or you shall have the right to
postpone the Time of Purchase for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor New ARI shall make arrangements
within the five business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of New ARI to any non-defaulting Underwriter
(except to the extent provided in Section 8 hereof) and without any liability on
the part of any non-defaulting Underwriter to New ARI (except to the extent
provided in Section 8 hereof). Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. Indemnity and Contribution. (a) New ARI and Old ARI agree to
indemnify, defend and hold harmless each Underwriter, its partners, directors
and officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable and documented cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by New ARI) or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to New ARI expressly for use in, the Registration Statement or
arises out of or is based upon any omission or alleged omission to state a
material fact in the Registration Statement in connection with such information,
which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary
to make such information not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact included in any Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include any
Preliminary Prospectus, the Prospectus and any amendments or supplements to the
foregoing), in any Permitted Free Writing Prospectus, in any "issuer
information" (as defined in Rule 433 under the Act) of New ARI or in any
Prospectus together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any, or arises out of or is based upon any omission or
alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except, with respect to such Prospectus or Permitted Free
Writing Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to New ARI expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in such Prospectus or Permitted
Free Writing Prospectus in connection with such information, which material fact
was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading or (iii) the Directed
Share Program, except, with respect to this clause (iii), insofar as such loss,
damage,
expense, liability or claim is finally judicially determined to have resulted
from the gross negligence or willful misconduct of the Underwriters in
conducting the Directed Share Program.
If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against New ARI or Old ARI pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify New ARI or Old ARI in writing
of the institution of such Proceeding and New ARI or Old ARI shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify New ARI or Old ARI shall not
relieve New ARI or Old ARI from any liability which New ARI or Old ARI may have
to any Underwriter, or any such person or otherwise except to the extent New ARI
or Old ARI is not otherwise aware of such Proceeding and is materially
prejudiced by such omission or New ARI or Old ARI forfeits substantial rights or
defenses as a result of such omission. Such Underwriter or such person shall
have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Underwriter or of
such person unless the employment of such counsel shall have been authorized in
writing by New ARI or Old ARI in connection with the defense of such Proceeding
or New ARI or Old ARI shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded after consultation with counsel that there may be defenses available
to it or them which are different from, additional to or in conflict with those
available to New ARI or Old ARI (in which case New ARI or Old ARI shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but New ARI or Old ARI may employ counsel and may participate
in the defense thereof), in any of which events such reasonable fees and
expenses shall be borne by New ARI or Old ARI and paid as incurred (it being
understood, however, that New ARI or Old ARI shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). New
ARI or Old ARI shall not be liable for any settlement of any Proceeding effected
without its written consent but if settled with the written consent of New ARI
or Old ARI, New ARI or Old ARI agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement, unless there is a bona fide
dispute between such indemnifying party and indemnified party regarding such
reimbursement of such fees and expenses and (iii) such indemnified party shall
have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding 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 such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
New ARI and Old ARI agree to indemnify, defend and hold harmless
UBS-FinSvc and its partners, directors and officers, and any person who controls
UBS-FinSvc within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, UBS-FinSvc or any
such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim (i) arises out of or is based upon (a)
any of the matters referred to in clauses (i) through (iii) of the first
paragraph of this Section 9(a), or (b) any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
consent of New ARI or Old ARI for distribution to Directed Share Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be state therein or
necessary to make the statements therein not misleading; (ii) is caused by the
failure of any Directed Share Participant to pay for and accept delivery of
Reserved Shares that the Directed Share Participant has agreed to purchase; or
(iii) otherwise arises out of or is based upon the Directed Share Program,
provided that New ARI shall not be responsible under this clause (iii) for any
loss, damage, expense, liability or claim that is finally judicially determined
to have resulted from the gross negligence or willful misconduct of UBS-FinSvc
in conducting the Directed Share Program. The third paragraph of this Section
9(a) shall apply equally to any Proceeding brought against UBS-FinSvc or any
such person in respect of which indemnity may be sought against New ARI or Old
ARI pursuant to the foregoing sentence; except that New ARI or Old ARI shall be
liable for the expenses of one separate counsel (in addition to any local
counsel) for UBS-FinSvc and any such person, separate and in addition to counsel
for the Underwriters, in any such Proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless New ARI, Old ARI, their respective directors and officers, and any
person who controls New ARI or Old ARI within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, New ARI, Old ARI or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter through you to New ARI expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by New ARI), or arises out of or is based upon
any omission or alleged omission to state a material fact in such Registration
Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated
in such Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter through you
to New ARI expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in such Prospectus or Permitted Free Writing Prospectus
in connection with such information, which material fact was not contained in
such information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading.
If any Proceeding is brought against New ARI, Old ARI or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, New ARI, Old ARI or such person shall
promptly notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify such Underwriter shall not relieve such Underwriter from any
liability which such Underwriter may have to New ARI, Old ARI or any such person
or otherwise. New ARI, Old ARI or such person shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of New ARI, Old ARI or such person unless the employment of such
counsel shall have been authorized in writing by such Underwriter in connection
with the defense of such Proceeding or such Underwriter shall not have, within a
reasonable
period of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to or in conflict with those available to such Underwriter (in which
case such Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such Underwriter
may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), in any of
which events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that such Underwriter shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless New ARI, Old ARI and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement, unless there is a bona fide dispute between such indemnifying party
and indemnified party regarding such reimbursement of such fees and expenses and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding 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 such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by New ARI and Old ARI on the one hand and the
Underwriters on the other hand from the offering of the Shares 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 New ARI and Old
ARI on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by New ARI and Old ARI on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by New ARI and
Old ARI and the total underwriting discounts and commissions received by the
Underwriters bear to the aggregate public offering price of the Shares. The
relative fault of New ARI and Old ARI on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by New ARI and/or Old ARI or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other
fees or expenses reasonably incurred and documented by such party in connection
with investigating, preparing to defend or defending any Proceeding.
(d) New ARI, Old ARI and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (d) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage which
such Underwriter has otherwise been required to pay by reason of such untrue
statement 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 to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of New ARI and Old
ARI contained in this Agreement shall remain in full force and effect regardless
of any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of New ARI or Old
ARI, their respective directors or officers or any person who controls New ARI
or Old ARI within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and shall survive any termination of this Agreement or the issuance
and delivery of the Shares. New ARI, Old ARI and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it and, in
the case of New ARI or Old ARI against any of New ARI's or Old ARI's officers or
directors, as the case may be, in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, the Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the second and third sentence of the paragraph entitled
"Commissions and Discounts" under the caption "Underwriting" in the Prospectus
and the paragraphs under the heading "Price Stabilization, Short Positions" in
the Prospectus, in each case only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Syndicate Department; if to New ARI or Old ARI, shall be sufficient in all
respects if delivered or sent to the offices of New ARI at [o], Attention: [o];
12. Free Writing Prospectus. Each Underwriter severally covenants
with the Old ARI and New ARI not to take any action without the written consent
of the New ARI, not to be unreasonably withheld, that would result in Old ARI or
New ARI being required to file with the Commission under Rule 433(d) under the
Act a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Old ARI or New ARI
thereunder, but for the action of the Underwriter. Old ARI and New ARI agree
with the Underwriters not to take any
action without your consent, not to be unreasonably withheld, that would result
in Old ARI or New ARI being required to file with the Commission under Rule
433(d) under the Act a free writing prospectus prepared by or on behalf of Old
ARI or New ARI that otherwise would not be required to be filed by the Old ARI
or New ARI thereunder
13. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the
Underwriters, New ARI and Old ARI consent to the jurisdiction of such courts and
personal service with respect thereto. Each of the Underwriters, New ARI and Old
ARI(on its behalf and, to the extent permitted by applicable law, on behalf of
its stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. New ARI, Old ARI and the
Underwriters agree that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon New
ARI, Old ARI and the Underwriters and may be enforced in any other courts to the
jurisdiction of which New ARI, Old ARI and the Underwriters are or may be
subject, by suit upon such judgment.
15. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, Old ARI and New ARI and to
the extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, New ARI, Old ARI and their successors and assigns and any
successor or assign of any substantial portion of Old ARI's, New ARI's and any
of the Underwriters' respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS
AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it
is solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
19. No Fiduciary Duty. New ARI and Old ARI hereby acknowledge that
the Underwriters are acting solely as underwriters in connection with the
purchase and sale of New ARI's securities. New ARI and Old ARI further
acknowledge that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an
arm's-length basis and in no event do the parties intend that the Underwriters
act or be responsible as a fiduciary to New ARI, Old ARI, their respective
management, stockholders, creditors or any other person in connection with any
activity that the Underwriters may undertake or has undertaken in furtherance of
the purchase and sale of New ARI's securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to New ARI and Old ARI either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and New ARI and Old ARI hereby confirm their understanding and agreement to that
effect. New ARI, Old ARI and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such
transactions, and that any opinions or views expressed by the Underwriters to
New ARI or Old ARI regarding such transactions, including but not limited to any
opinions or views with respect to the price or market for New ARI's securities,
do not constitute advice or recommendations to New ARI or Old ARI. New ARI and
Old ARI hereby waive and release, to the fullest extent permitted by law, any
claims that New ARI and Old ARI may have against the Underwriters with respect
to any breach or alleged breach of any fiduciary or similar duty to New ARI or
Old ARI in connection with the transactions contemplated by this Agreement or
any matters leading up to such transactions.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
If the foregoing correctly sets forth the understanding among New
ARI, Old ARI and the Underwriters, please so indicate in the space provided
below for the purpose, whereupon this Agreement and your acceptance shall
constitute a binding agreement among New ARI, Old ARI and the Underwriters,
severally.
Very truly yours,
AMERICAN RAILCAR INDUSTRIES, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
Title:
AMERICAN RAILCAR INDUSTRIES, INC.,
a Missouri corporation
By:
----------------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written
UBS SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
BB&T CAPITAL MARKETS,
A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
CIBC WORLD MARKETS CORP.
XXXXXX XXXXXX & COMPANY, INC.
By: UBS SECURITIES LLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
SCHEDULE A
Number of Number of
Underwriter Firm Shares Additional Shares
----------- ----------- -----------------
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
BB&T Capital Markets, a division of
Xxxxx & Xxxxxxxxxxxx CIBC World Markets Corp.
----------- -----------------
Xxxxxx Xxxxxx & Company, Inc.
----------- -----------------
Total
=========== =================
SCHEDULE B
Permitted Free Writing Prospectuses
SCHEDULE C
List of Subsidiaries
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Castings LLC Delaware
American Railcar Arkansas
Paragould I LLC
American Railcar Arkansas
Paragould II LLC
American Railcar Arkansas
Marmaduke I LLC
American Railcar Arkansas
Marmaduke II LLC
Southwest Steel I, LLC Texas
Southwest Steel II, LLC Texas
Southwest Steel III, LLC Texas
ARI Fleet Services of Ontario, Canada
Canada, Inc.
SCHEDULE D
List of Entities and Individuals Entering into a Lock-Up Agreement
[Xxxx X. Icahn
Xxxxxx Investments LLC
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Foundation for a Greater Opportunity
Modal LLC
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxx X. Xxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx]
SCHEDULE E
NASD Affiliations or Associations
Icahn & Co., Inc.
EXHIBIT A
FORM OF LOCK-UP LETTER
American Railcar Industries, Inc.
Common Stock
($0.01 Par Value)
_________, 2006
UBS Securities LLC
Bear, Xxxxxxx & Co., Inc.
BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, Inc.
CIBC World Markets Corp.
Xxxxxx Xxxxxx & Company, Inc.
As Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed Underwriting Agreement (the "Underwriting
Agreement") to be entered into by American Railcar Industries, Inc., a Delaware
Corporation ("New ARI"), American Railcar Industries, Inc., a Missouri
Corporation ("Old ARI") and you, as Underwriters, with respect to the public
offering (the "Offering") of Common Stock, par value $0.01 per share, of the
Company (the "Common Stock"). In this Lock-Up Letter Agreement, references to
the "Company" refer to each of Old ARI and New ARI prior to the Merger (as
defined in the Underwriting Agreement), and New ARI following the Merger
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that for a period of 180 days after the date of the final
prospectus relating to the Offering (the "Public Offering Date"), the
undersigned will not, without the prior written consent of UBS Securities LLC
("UBS") and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), (i) sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase or
otherwise dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and
Exchange Commission (the "Commission") in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
with respect to, any Common Stock of the Company or any securities convertible
into or exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock or any such Securities, (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or any such Securities, or
warrants or
other rights to purchase Common Stock, whether any such transaction is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise, or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii) of this paragraph. The foregoing sentence shall
not apply to (a) the registration of or sale to the Underwriters (as defined in
the Underwriting Agreement) of any Common Stock pursuant to the Offering and the
Underwriting Agreement, (b) bona fide gifts, provided the recipient thereof
agrees in writing with the Underwriters to be bound by the terms of this Lock-Up
Letter Agreement and confirms that he, she or it has been in compliance with the
terms of this Lock-Up Letter Agreement since the date hereof or (c) dispositions
to any trust or other entity for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided that such
trust or other such entity agrees in writing with the Underwriters to be bound
by the terms of this Lock-Up Letter Agreement and confirms that it has been in
compliance with the terms of this Lock-Up Letter Agreement since the date
hereof. For purposes of this paragraph, "immediate family" shall mean the
undersigned and the spouse, any lineal descendent, father, mother, brother or
sister of the undersigned.
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, during the Lock-Up Period, the undersigned will not,
without the prior written consent of UBS and Bear Xxxxxxx, make any demand for,
or exercise any right with respect to, the registration of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock.
Notwithstanding the above,
(1) during the period that begins on the date that is 15 calendar
days plus 3 business days before the last day of the Lock-Up Period ends
on the last day of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company
occurs; or
(2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period,
the restrictions imposed by this Lock-Up Letter Agreement shall continue to
apply until the expiration on of the date that is 15 calendar days plus 3
business days after the date on which the issuance of the earnings release or
the material news or material event occurs.
In addition, the undersigned hereby waives any and all preemptive
rights, participation rights, resale rights, rights of first refusal and similar
rights that the undersigned may have in connection with the Offering or with any
issuance or sale by the Company of any equity or other securities before the
Offering, except for any such rights as have been heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not,
directly or indirectly, taken, and hereby covenants that the undersigned will
not, directly or indirectly, take, any action designed, or which has constituted
or will constitute or might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of shares of Common
Stock.
If (i) the Company notifies you in writing that it does not intend
to proceed with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn, or (iii) for any reason
the Underwriting Agreement is terminated prior to the Time of Purchase (as
defined in the Underwriting Agreement), this Lock-Up Letter Agreement shall be
terminated and the undersigned shall be released from his or its obligations
hereunder.
Yours very truly,
--------------------------------
Name:
EXHIBIT B
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the Time of Purchase and, if applicable,
the Additional Time of Purchase.
3. The Company has performed all of its obligations under this Agreement as are
to be performed at or before the Time of Purchase and at or before the
Additional Time of Purchase, as the case may be.
4. The conditions set forth in paragraphs (e) and (f) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of
the Company as of, and for, the periods presented in the Registration
Statement.
6. There has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company since the respective dates as of which information is given in the
Prospectus.
7. No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending, or, to my knowledge, are contemplated by the Commission.
8. The Merger has been consummated pursuant to the terms of the Certificate of
Merger and all of the property, rights, privileges and powers of Old ARI have
vested in New ARI, and all debts, liabilities, obligations, restrictions,
disabilities and duties of Old ARI have become the debts, liabilities,
obligations, restrictions, disabilities and duties of New ARI.
EXHIBIT C-1
FORM OF OPINION OF XXXXX XXXXXXX XXXXXXX ISRAELS LLP
AS COUNSEL TO OLD ARI AND NEW ARI
[Separately Provided]
EXHIBIT C-2
FORM OF OPINION OF XXXXXXXXX XXXXXXXX LLP
AS MISSOURI COUNSEL TO OLD ARI AND NEW ARI
[Separately Provided]
EXHIBIT D
CERTIFICATE OF MERGER
