MAIDENFORM BRANDS, INC. 4,000,000 Shares Common Stock ($0.01 Par Value) UNDERWRITING AGREEMENT November 20, 2006
Exhibit
1.1
4,000,000
Shares
Common
Stock
($0.01
Par Value)
November
20, 2006
November
20, 2006
Credit
Suisse Securities (USA) LLC
Eleven
Madison Avenue,
New
York,
N.Y. 10010-3629
Ladies
and Gentlemen:
The
persons named in Schedule
A
annexed
hereto (the “Selling Stockholders”), severally and not jointly, propose to sell
to you (the “Underwriter”), an aggregate of 4,000,000 shares (the “Shares”) of
Common Stock, $0.01 par value (the “Common Stock”), of Maidenform Brands, Inc.,
a Delaware corporation (the “Company”), in the respective amounts set forth in
Schedule
A
annexed
hereto. The Shares are described in the Base Prospectus which is referred to
below.
The
Company has 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 Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-138314) under the Act filed
on
October 31, 2006 (the “registration statement”). Such registration statement, as
so amended, has been declared by the Commission to be effective under the Act.
The Company will next file with the Commission pursuant to Rule 424(b) under
the
Act a final prospectus supplement to the base prospectus, describing the Shares
and the offering thereof, in such form as has been provided to or discussed
with, and approved by, the Underwriter.
The
term
“Registration
Statement”
as
used
in this Agreement means the registration statement, as amended at the time
it
became effective and as supplemented or amended (including all information
deemed to be part of and included in the registration statement pursuant to
Rule
430B under the Act) prior to the execution of this Agreement, including (i)
all
financial schedules and exhibits thereto and (ii) all documents incorporated
by
reference or deemed to be incorporated by reference therein. If an abbreviated
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) under the Act (an “Abbreviated
Registration Statement”),
the
term “Registration
Statement”
includes the Abbreviated Registration Statement.
The
term
“Base
Prospectus”
as
used
in this Agreement means the base prospectus, dated as of November 16, 2006,
included in the Registration Statement at the time it was declared effective
by
the Commission or in the form in which it has been most recently filed with
the
Commission on or prior to the date of this Agreement. The term “Prospectus
Supplement”
as
used
in this Agreement means the final prospectus supplement specifically relating
to
the Shares in the form that is first filed with the Commission pursuant to
Rule
424 under the Act after the date and time this Agreement is executed and
delivered by the parties hereto. The term “Prospectus”
as
used
in this Agreement means the Base Prospectus as amended or supplemented by the
Company prior to the date of the filing of the Prospectus Supplement together
with the Prospectus Supplement.
“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 the Base Prospectus and the Permitted Free Writing
Prospectuses, if any, all considered together.
Any
reference herein to the registration statement, the Registration Statement,
the
Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed
to
refer to and include the documents incorporated by reference therein pursuant
to
Item 12 of Form S-3 under the Act. Any reference herein to the terms
“amend,”
“amendment”
or
“supplement”
with
respect to the Registration Statement, the Base Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended, and
the
rules and regulations thereunder (collectively, the “Exchange Act”) after the
effective date of the Registration Statement, or the date of such Base
Prospectus, or the Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference (the “Incorporated Documents”).
As
used
herein, “business day” shall mean a day on which the New York Stock Exchange is
open for trading.
The
Company, the Selling Stockholders and the Underwriter 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, each of the Selling Stockholders, severally and
not
jointly, agrees to sell to the Underwriter and the Underwriter agrees to
purchase from each Selling Stockholder the number of Shares set forth opposite
the name of such Selling Stockholder in Schedule
A
attached
hereto, in each case at a purchase price of $19.90 per Share. Each Selling
Stockholder is advised by you that you intend to offer the Shares for sale
to
the public as soon after this Agreement has been entered into as in your
judgment is advisable.
Pursuant
to powers of attorney (individually, a “Power-of-Attorney” and collectively, the
“Powers-of-Attorney”), which shall be reasonably satisfactory to counsel for the
Underwriter, granted by each Selling Stockholder, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will act as the attorneys-in-fact of the Selling
Stockholders. The foregoing attorneys-in-fact (the “Attorneys-in-Fact of the
Selling Stockholders”) are authorized, on behalf of each Selling Stockholder, to
execute any documents necessary or desirable in connection with the sale of
the
Shares to be sold hereunder by each Selling Stockholder, to make delivery of
the
certificates for such Shares, to receive the proceeds of the sale of such
Shares, to give receipts for such proceeds, to pay therefrom the expenses to
be
borne by each Selling Stockholder in connection with the sale and public
offering of the Shares, to distribute the balance of such proceeds to each
Selling Stockholder in proportion to the number of Shares sold by each Selling
Stockholder, to receive notices on behalf of each Selling Stockholder and to
take such other action as may be necessary or desirable in connection with
the
transactions contemplated by this Agreement.
2. Payment
and Delivery.
Payment
of the purchase price for the Shares shall be made to each of the Selling
Stockholders by wire transfer of immediately available funds, against delivery
of the certificates for the Shares to you through the facilities of The
Depository Trust Company (“DTC”) for the account of the Underwriter. Such
payment and delivery shall be made at 10:00 A.M., New York City time, on
November 27, 2006 (unless another time shall be agreed to by you and the Company
and the Attorneys-in-Fact of the Selling Stockholders) to an account at a bank
acceptable to you made to the order of Continental Stock Transfer & Trust
Company, as custodian (the “Custodian”) for the Shares. The time at which such
payment and delivery are to be made is hereinafter sometimes called “the time of
purchase.” Electronic transfer of the Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
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Deliveries
of the documents described in Section 7 hereof with respect to the purchase
of
the Shares shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New
York
City time, on the date of the closing of the purchase of the
Shares.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with the Underwriter
that:
(a) The
Registration Statement has been declared effective under the Act; no stop order
of the Commission preventing or suspending the use of the Base Prospectus,
the
Prospectus Supplement or the Prospectus or the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are threatened by the Commission;
the
Registration Statement complied when it became effective, complies and will
comply, at the time of purchase, in all material respects with the requirements
of the Act and the Base Prospectus complied, as of its date and at the time
of
purchase, in all material respects, with the requirements of the Act; the
conditions to the use of Form S-3 in connection with the offering and sale
of
the Shares as contemplated hereby have been satisfied; the Registration
Statement meets, and the offering and sale of the Shares as contemplated hereby
complies with, the requirements of Rule 415(a)(1)(i) under the Act; the
Registration Statement did not, as of the time such Registration Statement
became effective, and at the 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; at all times during
the
period beginning with the execution of this Agreement and ending at the time
of
purchase, the Disclosure Package does not and will not 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 Prospectus will comply, as of the date
that
it is filed with the Commission, the date of the Prospectus Supplement and,
as
amended or supplemented, at all times during the period beginning with the
execution of this Agreement and ending on the time of purchase, in all material
respects, with the requirements of the Act (including, without limitation,
Section 10(a) of the Act); the Prospectus, as of the date that it is filed
with
the Commission, the date of the Prospectus Supplement and, as amended or
supplemented, at the time of purchase did not or will not 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
the Company makes no representation or warranty with respect to any statement
contained in or omitted from the Registration Statement, the Disclosure Package
or the Prospectus in reliance upon and in conformity with information concerning
the Underwriter and furnished in writing by or on behalf of the Underwriter
to
the Company expressly for use therein; provided,
further,
that
if, at any time after the time of purchase, the Company is obligated to prepare
and furnish to the Underwriter an amendment or supplement to the Prospectus
under Section 5(g) of this Agreement and so furnishes such amendment or
supplement, then from and after the time that such Prospectus as amended or
supplemented is furnished to the Underwriter in accordance with Section 5(g),
the term “Prospectus” shall be deemed to mean the Prospectus as so amended or
supplemented; each Incorporated Document, at the time such document was filed
with the Commission, complied, in all material respects, with the requirements
of the Exchange Act and did not 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;
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(b) the
Incorporated Documents, when they were filed with the Commission, conformed
in
all material respects to the requirements of the Exchange Act, and none of
such
documents, when they were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact necessary
to
make the statements therein, in light of the circumstances in which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and/or the Prospectus, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will not contain
an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances in which they
were
made, not misleading;
(c) prior
to
the execution of this Agreement, neither the Company nor, to the knowledge
of
the Company, any Selling Stockholder has, 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 Base Prospectus and
the
Permitted Free Writing Prospectuses, if any; neither the Company nor, to the
knowledge of the Company, any Selling Stockholder has, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except
in
compliance with the applicable provisions of Rules 164 and 433 under the Act;
assuming 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), such Permitted Free Writing Prospectus
will
be deemed to be a prospectus permitted under Section 10(b) of the Act for
purposes of Section 5(b)(1) of the Act; the conditions set forth in one or
more
of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act
are
satisfied, and the registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission, includes a
prospectus that, other than by reason of Rule 433 or Rule 431 under the Act,
satisfies the applicable requirements of Section 10 of the Act; neither the
Company nor the Underwriter 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; the Company is not an “ineligible
issuer” (as defined in Rule 405 under the Act) as of the eligibility
determination date set forth in Rule 164(h) under the Act with respect to the
offering of the Shares contemplated by the Registration Statement;
(d) as
of the
date specified in the Incorporated Documents, the Company had authorized and
outstanding capitalization as set forth in the Incorporated Documents; all
of
the issued and outstanding shares of capital stock, including the Common Stock
and the Shares, of the Company have been duly authorized and validly issued
and
are fully paid and non-assessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation
of
any preemptive right, resale right, right of first refusal or similar
right;
4
(e) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with full corporate
power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus and to execute
and
deliver this Agreement;
(f) the
Company 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 on the business, properties,
financial condition, results of operation or prospects of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse
Effect”);
(g) the
Company has no subsidiaries other than those listed in Exhibit 21.1 of the
Company’s Annual Report on Form 10-K for the year ended December 31, 2005 and
those listed on Schedule
C
hereto
(collectively, the “Subsidiaries”); other than the capital stock of the
Subsidiaries and immaterial stock ownership stakes in several publicly-traded
companies, the Company does 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 (or other similar organizational documents) of the Company 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; each 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 the requisite corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement, the Disclosure Package and the Prospectus; each
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 or in good standing 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 have been duly authorized
and validly issued, are fully paid and non-assessable and (except as otherwise
described in this Section 3(g) or as described in the Prospectus) are owned,
directly or indirectly, by the Company subject to no security interest, other
encumbrance or adverse claims; 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;
(h) the
Shares have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all applicable federal and
state securities laws and were not issued by the Company in violation of any
statutory or contractual preemptive right or any resale right, right of first
refusal or other similar rights;
5
(i) the
capital stock of the Company, including the Shares, shall conform in all
material respects as of the time of purchase, to the description thereof
contained in the Registration Statement, the Disclosure Package and the
Prospectus and the certificates evidencing the Shares are in due and proper
form
in all material respects and the holders of the Shares will not be subject
to
personal liability by reason of being such holders in all material
respects;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor 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 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 or repayment of all or a part of
such indebtedness under) (i) its respective charter or by-laws (or other similar
organizational documents), 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 the Company or any
of
the Subsidiaries is a party or by which any of them or any of their properties
may be bound or affected, except, with respect to clause (ii), for such
breaches, violations or defaults as would not have a Material Adverse Effect,
and the execution, delivery and performance of this Agreement, the sale of
the
Shares and the consummation of the transactions contemplated hereby 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 of or constitute a default under) (x) the charter or
by-laws (or other similar organizational documents) of the Company or any of
the
Subsidiaries, (y) 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 the Company 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, except for such breaches, violations or defaults as would
not
have a Material Adverse Effect, or (z) any federal, state, local or foreign
law,
regulation or rule or any decree, judgment or order applicable to the Company
or
any of the Subsidiaries;
(l) no
approval, authorization, consent 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 sale of the Shares or the
consummation by the Company of the transactions contemplated hereby other than
registration of the offer and sale of the Shares under the Act and registration
of the Shares under the Exchange Act, which has been or will be effected, and
any necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriter or under
the rules and regulations of the NASD;
(m) except
as
set forth in the Registration Statement and the Prospectus, and after giving
effect to the consummation of the offering, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to it any shares
of Common Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale rights, rights
of first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock or other equity interests of the Company,
and
(iii) no person has the right to act as an underwriter or as a financial advisor
to the Company in connection with the offer and sale of the Shares, in the
case
of each of the foregoing clauses (i), (ii) and (iii), whether as a result of
the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise; except as described in the Base
Prospectus, no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, or to include
any
such shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of
the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise;
6
(n) each
of
the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
applicable 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 the failure
to
obtain such licenses, authorizations, consents and approvals would not have
a
Material Adverse Effect; neither the Company nor any of the Subsidiaries is
in
violation of, or in default under, or has received written 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 the Company
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;
(o) all
legal
or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases, documents, statutes
or
regulations of a character required to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(p) except
as
described in the Disclosure Package, there are no actions, suits, claims or
proceedings pending or, to the Company’s knowledge, threatened to which the
Company or any of the Subsidiaries or any of their respective directors or
officers is a party or of which any of their respective properties is subject
at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, 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;
(q) based
solely on information provided by PricewaterhouseCoopers LLP
(“PricewaterhouseCoopers”) to the Company and the Company’s knowledge and
belief, PricewaterhouseCoopers, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the Commission
as
part of the Registration Statement, is an independent registered public
accounting firm as required by the Act;
(r) the
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, the Disclosure Package and the
Prospectus, together with the related notes, present fairly, in all material
respects, the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the periods
specified and, except as otherwise set forth in the Prospectus, have been
prepared in compliance with the requirements of the Act and in conformity with
generally accepted accounting principles in the United States of America applied
on a consistent basis during the periods involved; any pro forma financial
statements included in the Prospectus comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X of the Act; any
pro forma financial statement or data included or incorporated by reference
in
the Registration Statement, the Disclosure Package or the Prospectus comply
with
the applicable requirements of Regulation S-X of the Act, if any, and the
assumptions used in the preparation of such pro forma financial statements
and
data are reasonable, the pro forma adjustments used therein are appropriate
to
give effect to the transactions or circumstances described therein and the
pro
forma adjustments have been properly applied to the historical amounts in the
compilation of those statements; the other financial and statistical data set
forth in the Registration Statement, the Disclosure Package and the Prospectus,
are accurately presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included in the
Prospectus that are not included as required; and the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not disclosed in
the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus;
and all disclosures contained in the Registration Statement, the Disclosure
Package or the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act,
to
the extent applicable;
7
(s) subsequent
to the respective dates as of which information is given or incorporated by
reference in the Disclosure Package, excluding any amendments or supplements
to
the foregoing made after the execution of this Agreement, except as disclosed
in
the Disclosure Package, there has not been (i) any material adverse change,
or
any development involving a prospective material adverse change, in the
business, properties, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiaries taken as a whole, (iii) any
obligation, direct or contingent (including any off-balance sheet obligations),
incurred by the Company or the Subsidiaries, which is material to the Company
and the Subsidiaries taken as a whole, (iv) except as described in or
contemplated by the Disclosure Package, any change in the capital stock or
outstanding indebtedness of the Company or the Subsidiaries or (v) except as
described in or contemplated by the Disclosure Package, any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company;
(t) the
Company has obtained a lock-up agreement in the form set forth as Exhibit
A
hereto
(each, a “Lock-Up Agreement”) from each director and executive officer of the
Company and from each of the Selling Stockholders;
(u) the
Company is not and, after giving effect to the offering and sale of the Shares,
will not be an “investment company”, or to its knowledge, an entity “controlled”
by an entity required to register as an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(v) the
Company and each of the Subsidiaries has good and marketable title to all
property (real and personal) described in the Registration Statement, the
Disclosure Package and the Prospectus as being owned by each of them, free
and
clear of all liens, claims, security interests or other encumbrances except
as
described in the Registration Statement, the Disclosure Package or the
Prospectus or such as do not materially affect the value of such property and
do
not interfere with the use made or proposed to be made of such property by
the
Company; all the property described in the Registration Statement, the
Disclosure Package and the Prospectus as being held under lease by the Company
or a Subsidiary is held thereby under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made
or proposed to be made of such property and buildings by the
Company;
8
(w) except
as
described in the Registration Statement or the Disclosure Package, (i) to the
Company’s knowledge, the Company and the Subsidiaries 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, copyrights, trade secrets and other proprietary information
described in the Registration Statement and the Disclosure Package as being
owned or licensed by them, except where the failure to own, license or have
such
rights would not, individually or in the aggregate, have a Material Adverse
Effect (collectively, “Intellectual Property”); (ii) to the Company’s knowledge,
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 the Company and except for ownership
rights by third parties which would not, individually or in the aggregate,
result in a Material Adverse Effect; (iii) to the Company’s knowledge, there is
no infringement by third parties of any Intellectual Property which is material
to the Company and which infringement would result in a Material Adverse Effect;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property which is material to the Company and which action, suit,
proceeding or claim would, if determined adversely to the Company, result in
a
Material Adverse Effect; (v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others which is material to the Company and
which
action, suit, proceeding or claim would, if determined adversely to the Company,
result in a Material Adverse Effect; and (vi) to the Company’s knowledge, there
is no prior art that is known by Company and which has not been disclosed to the
U.S. Patent and Trademark Office that may render any patent application relating
to any of the Intellectual Property owned by the Company
unpatentable;
(x) except
for matters which would not, individually or in the aggregate, have a Material
Adverse Effect, (i) neither the Company nor any of the Subsidiaries is engaged
in any unfair labor practice; (ii) there is (A) no unfair labor practice
complaint pending or, to the Company’s knowledge, threatened against the Company
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 Company’s knowledge, threatened, (B)
no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries and (C)
no
union representation dispute currently existing concerning the employees of
the
Company or any of the Subsidiaries, and (iii) to the Company’s knowledge, (A) no
union organizing activities are currently taking place concerning the employees
of the Company or any of the Subsidiaries and (B) there has been no violation
of
any applicable 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 Company or any of the Subsidiaries;
9
(y) the
Company 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; there are
no
past, present or, to the Company’s knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions, omissions
or
plans that could reasonably be expected to give rise to any material costs
or
liabilities to the Company or the Subsidiaries under, or to interfere with
or
prevent compliance by the Company or the Subsidiaries with, Environmental Laws;
except as would not, individually or in the aggregate, have a Material Adverse
Effect, neither the Company nor any of the Subsidiaries (i) is, to the Company’s
knowledge, 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
Company’s knowledge, 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 violation of any Environmental Law or any actual or
alleged release or threatened 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, applicable to the Company which
relates 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);
(z) in
the
ordinary course of its business, the Company and each of the Subsidiaries
maintains procedures for performing regular internal audits of each of its
properties for compliance with applicable Environmental Laws and ensuring
correction of any material incidents of non-compliance detected by means of
such
audits;
(aa) all
tax
returns required to be filed by the Company and each of the Subsidiaries
(including any applicable extensions) have been filed, and 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 such entities have been paid, other than
those being contested in good faith and for which adequate reserves have been
provided and except where the failure to file to such returns or to pay such
taxes would not, individually or in the aggregate, have a Material Adverse
Effect;
(bb) the
Company and each of the Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses as the Company deems adequate;
such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company
and the Subsidiaries and their businesses; all such insurance is fully in force
on the date hereof and will be fully in force at the time of
purchase;
10
(cc) neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements included in the Registration Statement and the
Prospectus any material loss or interference with their respective businesses
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, other than as described in the Registration Statement and the
Prospectus;
(dd) the
Company has not sent or received any communication regarding termination of,
or
intent not to renew, any of the material contracts or agreements filed as an
exhibit to or referred to or described in the Registration Statement, the
Disclosure Package, the Prospectus or any Incorporated Document and no such
termination or non-renewal has been threatened in writing by the Company or,
to
the Company’s knowledge, any other party to any such contract or
agreement;
(ee) the
Company 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;
(ff) the
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act), which
are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’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 and have been evaluated for
effectiveness as of the end of the period covered by the Company’s most recent
quarterly report filed with the Commission. The Company’s independent registered
public accounting firm and the Audit Committee of the Board of Directors have
been advised of: (x) any significant deficiencies in the design or operation
of
internal control over financial reporting which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report
financial data; and (y) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal control
over financial reporting. The principal executive officer and principal
financial officer of the Company have made all certifications required by
Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and any related rules and regulations promulgated by the Commission, and
the statements contained in each such certification are complete and correct;
(gg) the
Company believes that the “material weakness” and each of the “reportable
conditions” in the design and operation of internal controls as of December 27,
2003 identified in the letter dated June 8, 2004 from PricewaterhouseCoopers
to
the Company has been remedied in all material respects, and the Company has
no
reason to believe that PricewaterhouseCoopers would not concur in its belief
in
this regard;
11
(hh) the
Company has provided you true, correct, and complete copies of all documentation
pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive officer
of
the Company, or to any family member or affiliate of any director or executive
officer of the Company; and since July 30, 2002, the Company has 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 the Company, or to or
for
any family member or affiliate of any director or executive officer of the
Company; or (ii) made any material modification, including any renewal thereof,
to any term of any personal loan to any director or executive officer of the
Company, or any family member or affiliate of any director or executive officer,
which loan was outstanding on July 30, 2002;
(ii) any
statistical and market-related data included or incorporated by reference in
the
Registration Statement and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources to the
extent required;
(jj) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge after
due inquiry, any employee or agent of the Company or the Subsidiaries has made
any payment of funds of the Company or the Subsidiaries or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt
or
retention of funds is of a character required to be disclosed in the
Registration Statement, the Disclosure Package or the Prospectus;
(kk) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted
or
could 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 the Shares;
(ll) to
the
Company’s knowledge, based solely upon Schedule 13D, Schedule 13G or other
filings respecting the Company by such persons with the Commission and upon
completed questionnaires, there are no affiliations or associations between
any
member of the NASD and any of the Company’s officers, directors or 5% or greater
securityholders, except as set forth in the Registration Statement, the
Disclosure Package and the Prospectus;
In
addition, any certificate signed by any officer of the Company or any of the
Subsidiaries and delivered to the Underwriter or counsel for the Underwriter
in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company or such Subsidiary, as the case
may
be, as to matters covered thereby, to the Underwriter.
4. Representations
and Warranties of the Selling Stockholders.
Each
Selling Stockholder, severally and not jointly, represents and warrants to
the
Underwriter that:
(a) such
Selling Stockholder now is and at the time of delivery of the Shares to be
sold
by it will be, the lawful beneficial owner of the number of Shares to be sold
by
such Selling Stockholder pursuant to this Agreement and has and, at the time
of
delivery thereof, will have valid and marketable title to such Shares, and
upon
delivery of and payment for such Shares, the Underwriter will acquire valid
and
marketable title to such Shares free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or other
defect in title;
12
(b) such
Selling Stockholder has and at the time of delivery of such Shares will have,
full legal right, power and capacity, and any approval required by law (other
than those imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver such Shares in the manner
provided in this Agreement;
(c) this
Agreement, the Power-of-Attorney, the Custody Agreement among the Custodian
and
the Selling Stockholders (the “Custody Agreement”) and a Lock-Up Agreement have
each been duly executed and delivered by or on behalf of such Selling
Stockholder and each of the Custody Agreement (assuming due authorization,
execution and delivery by the Custodian), the Power-of-Attorney and Lock-Up
Agreement is a legal, valid and binding agreement of such Selling Stockholder
enforceable in accordance with its terms; subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles;
(d) the
sale
of the Shares to be sold by such Selling Stockholder hereunder and the
compliance by such Selling Stockholder with all of the provisions of this
Agreement, the Power-of-Attorney and the Custody Agreement and the consummation
by such Selling Stockholder of the transactions contemplated hereby and thereby
(i) will not conflict with, or result in any breach of or constitute a default
under (nor constitute any event which, with notice, lapse of time, or both,
would result in any breach of, or constitute a default under), (x) if such
Selling Stockholder is not a natural person, its charter, by-laws or other
organizational documents, (y) 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 such Selling Stockholder
is a
party or by which such Selling Stockholder or such Selling Stockholder’s
properties may be bound or affected and which is material to such Selling
Stockholder or which is material to the transactions contemplated by this
Agreement or (z) under any federal, state, local or foreign law, regulation
or
rule in any decree, judgment or order applicable to such Selling Stockholder,
and (ii) such sale can not be matched with a corresponding purchase prior to
the
time of purchase, for purposes of, and as determined pursuant to, Section 16(b)
of the Exchange Act;
(e) the
Shares represented by the certificates held in custody for such Selling
Stockholder under the Custody Agreement are subject to the interests of the
Underwriter hereunder; the arrangements made by such Selling Stockholder for
such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable;
the
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death or incapacity of such Selling Stockholder
or, in the case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in the case
of a partnership, corporation or other entity, by the dissolution of liquidation
of such partnership, corporation or other entity, or by the occurrence of any
other event; if any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership, corporation or other entity
should be dissolved or liquidated, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares to be sold by such Selling Stockholder shall be delivered by or on behalf
of such Selling Stockholder in accordance with the terms and conditions of
this
Agreement and the Custody Agreement;
13
(f) in
respect of any statements in or omissions from the Registration Statement,
the
Disclosure Package, the Prospectus or any amendment or supplement thereto made
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly and specifically for use therein
(it being understood and agreed that the only such information furnished to
the
Company by any such Selling Stockholder consists of the information described
in
Section 11(b) of this Agreement) (“Selling Stockholder Information”), (i) the
Registration Statement did not when it became effective, does not and will
not,
at the time of purchase, contain an untrue statement of a material fact
concerning such Selling Stockholder’s Selling Stockholder Information or omit to
state a material fact concerning such Selling Stockholder’s Selling Stockholder
Information required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Disclosure Package distributed in connection
with the offering of the Shares did not, as of its date, and does not contain
an
untrue statement of a material fact concerning such Selling Stockholder’s
Selling Stockholder Information or omit to state a material fact concerning
such
Selling Stockholder’s Selling Stockholder Information required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (iii) the
Prospectus will not, as of its date and at the time of purchase, contain an
untrue statement of a material fact concerning such Selling Stockholder’s
Selling Stockholder Information or omit to state a material fact concerning
such
Selling Stockholder’s Selling Stockholder Information required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(g) such
Selling Stockholder has duly and irrevocably authorized the Attorneys-in-Fact
of
the Selling Stockholders, on behalf of such Selling Stockholder, to execute
and
deliver this Agreement and any other document necessary or desirable in
connection with the transactions contemplated thereby and to deliver the Shares
to be sold by such Selling Stockholder and receive payment therefor pursuant
hereto;
(h) such
Selling Stockholder has not taken, directly or indirectly, any action designed,
or which has constituted or could 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 the
Shares;
(i) the
sale
of the Shares pursuant to this Agreement is not prompted by any information
concerning the Company which is not set forth in the Registration Statement
or
the Disclosure Package; and
(j) such
Selling Stockholder acquired the Shares being sold by such Selling Stockholder
as set forth under “Selling Stockholders” in the Base Prospectus.
5. Certain
Covenants of the Company and Selling Stockholders.
The
Company, and, with respect to clause (g) only, each Selling Stockholder,
severally and not jointly, hereby agrees:
14
(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 designate and to maintain
such qualifications in effect so long as you may request for the distribution
of
the Shares; provided
that the
Company shall not be required to qualify as a foreign corporation 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 the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to
make
available to the Underwriter in New York City, as soon as practicable after
the
Registration Statement becomes effective, and thereafter from time to time
to
furnish to the Underwriter, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) as the Underwriter may request for the purposes contemplated by
the
Act; in case the Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar Rule), in
connection with the sale of the Shares, 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, the Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus as
may
be necessary to permit compliance with the applicable 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 Shares may be sold, the Company will endeavor to cause
the
Registration Statement or such post-effective amendment to become effective
as
soon as possible and the Company 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 the Company agrees
to
file in a timely manner under such Rule);
(d) to
advise
you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, the
Prospectus, or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of written notice of the 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
commercially reasonable efforts to obtain the lifting or removal of such order
as soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, including by filing
any
documents that would be incorporated therein by reference, and to provide you
and Underwriter’ 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 5(d) hereof, to file promptly all reports and any definitive proxy
or
information statement required to be filed by the Company 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 of 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 the offering or sale of the Shares;
to
provide you with a copy of such reports and statements and other documents
to be
filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing,
and
to promptly notify you of such filing;
15
(f) if
necessary or appropriate, to file a registration statement pursuant to Rule
462(b) under the Act;
(g) to
advise
the Underwriter promptly of the happening of any event 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 5(d) hereof,
the
Company shall prepare and furnish, at the Company’s expense, to the Underwriter
promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any such change, provided, however, that with respect to a Selling
Stockholder, this clause (g) shall only relate to such Selling Stockholder’s
Selling Stockholder Information;
(h) to
make
generally available to its security holders, and to deliver to you, an earning
statement of the Company (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) promulgated under
the
Act) as soon as is reasonably practicable after the termination of such
twelve-month period;
(i) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements
of
income, shareholders’ equity and cash flow of the Company and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report thereon
of a nationally recognized independent registered public accounting firm),
for
so long as the Company shall have a legal obligation to do so;
(j) to
furnish to you and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP one copy of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other
Underwriter;
(k) to
furnish to you promptly and, upon request, to each of the other Underwriter
for
a period of two years from the date of this Agreement (i) copies of any reports
or other communications which the Company shall send to its stockholders or
shall from time to time publish or publicly disseminate, (ii) copies of all
annual, 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; provided,
that
with respect to clauses (i) and (ii) the Company shall be deemed to have
satisfied its obligation to the extent such documents are available on ▇▇▇▇▇,
(iii) copies of documents or reports filed with any national securities exchange
on which any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or the
Subsidiaries;
16
(l) to
the
extent not available on ▇▇▇▇▇ and upon your request, to furnish to you as early
as practicable prior to the time of purchase, but not later than two business
days prior thereto, a copy of the latest available unaudited quarterly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent registered public accounting
firm, as stated in their letter to be furnished pursuant to Section 7(f)
hereof;
(m) to
pay
all costs, expenses, fees and taxes (other than any fees and disbursements
of
counsel for the Underwriter, except as set forth in clauses (iv) and (vi) below)
in connection with (i) the preparation and filing of the Registration Statement,
the Base Prospectus, the Prospectus Supplement, 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 Underwriter 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, if applicable, or delivery
of
the Shares to the Underwriter, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriter, any dealer
agreements, any Powers of Attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriter and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the qualification of
the
Shares for offering and sale under state or foreign laws and the determination
of their eligibility for investment under state or foreign law as aforesaid
(including the reasonable legal fees and filing fees and other disbursements
of
counsel for the Underwriter incurred in connection with such qualifications
and
determinations, which shall not exceed $10,000) and the printing and furnishing
of copies of any blue sky surveys or legal investment surveys to the Underwriter
and to dealers, (v) any filing for review of the public offering of the Shares
by the NASD, including the legal fees and filing fees and other disbursements
of
counsel to the Underwriter (which legal fees and disbursements shall not exceed
$5,000, (vi) the fees and disbursements of any transfer agent or registrar
for
the Shares, (vii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriter’
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 the Company and any
such
consultants, and the cost of any aircraft chartered in connection with the
road
show, (viii) the performance of the Company’s other obligations hereunder, and
(ix) the performance of the obligations of each Selling Stockholder hereunder,
including without limitation, any fees and expenses of counsel to the Selling
Stockholders, the fees and expenses of the Attorneys-in-Fact and the Custodian
and all expenses and taxes incident to the sale and delivery of the Shares
to be
sold by the Selling Stockholders to the Underwriter hereunder, to the extent,
but solely to the extent, that the Company is responsible for such obligations
pursuant to any agreement between the Company and such Selling Stockholder;
any
other such fees or expenses of any Selling Stockholder not specifically provided
for herein or therein shall be borne by such Selling Stockholder;
17
(n) to
comply
with Rule 433(g) under the Act, if applicable;
(o) not
to
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, 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 the Company that are substantially similar
to
Common Stock, or 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
other rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock for a period of 90 days after
the
date hereof (the “Lock-Up Period”), without the prior written consent of the
Underwriter, except for (i) the registration of the Shares and the sales to
the
Underwriter pursuant to this Agreement, (ii) issuances of Common Stock upon
the
exercise of options or warrants disclosed as outstanding in the Registration
Statement and the Prospectus, (iii) the filing of one or more registration
statements on Form S-8 relating to the issuance and exercise of employee stock
options, (iv) the issuance of employee stock options not exercisable during
the
Lock-Up Period pursuant to stock option plans described in the Registration
Statement and the Prospectus, and (v) in connection with any acquisition of,
or
merger with, another company or the acquisition of any assets of another
company; provided,
however,
that
with respect to this clause (v), any such acquisition or merger involves an
amount of the Company’s securities that is less than or equal to ten percent
(10%) of the Company’s outstanding share capital, which shall be measured at the
time a definitive agreement is signed in connection with such acquisition,
merger or strategic transaction; and provided,
further,
that it
shall be a condition of closing of any such transaction that any person or
entity who becomes a holder of the Common Stock or any securities substantially
similar to the Common Stock, including but not limited to any securities
convertible into or exchangeable for Common Stock, or that represents the right
to receive Common Stock or any such securities, shall execute a Lock-Up
Agreement;
(p) except
for such communications that would satisfy the requirements of Rule 168 under
the Act or otherwise constitute (1) factual information, the dissemination
of
which is permitted pursuant to Securities Act Release 33-5180 (August 16, 1971)
or (2) ordinary business and financial information, the dissemination of which
is permitted pursuant to Securities Act Release 33-7856 (April 28, 2000), prior
to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the Company
or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary, or the
offering of the Shares, without your prior consent, which shall not be
unreasonably withheld;
(q) without
your prior written consent, 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;
(r) to
use
its commercially reasonable efforts to maintain the listing of the Common Stock
on the New York Stock Exchange;
18
(s) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
6. Reimbursement
of Underwriter’
Expenses.
If the
Shares are not delivered for any reason other than the default by the
Underwriter in its obligations hereunder, the Company shall, in addition to
paying the amounts described in Section 5(m) hereof, reimburse the Underwriter
for all of their reasonable out-of-pocket expenses, including the reasonable
fees and disbursements of their counsel.
7. Conditions
of Underwriter’s Obligations.
The
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders on the date hereof, at the time of purchase and the performance
by
the Company and each of the Selling Stockholders of its obligations hereunder
and to the following additional conditions precedent:
(a) The
Company shall furnish to you, at the time of purchase, an opinion of Proskauer
Rose LLP, counsel for the Company, addressed to the Underwriter, and dated
the
time of purchase, in form and substance reasonably satisfactory to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, stating that:
(i) the
Company is existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus and to execute and deliver this
Agreement;
(ii) each
of
the U.S. Subsidiaries is existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus;
(iii) this
Agreement has been duly authorized, executed and delivered by the
Company;
(iv) all
of
the issued and outstanding shares of capital stock of the Company are free
of
preemptive rights under the Delaware General Corporation Law and the certificate
of incorporation and by-laws of the Company;
(v) the
certificates for the Shares are in due and proper form and the holders of the
Shares will not be subject to personal liability by reason of being such
holders;
(vi) the
Shares conform in all material respects to the description thereof contained
in
the Registration Statement and the Prospectus;
(vii) the
Registration Statement and the Prospectus (except as to the financial statements
and schedules and other financial data contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with
the applicable requirements of the Act;
19
(viii) each
of
the Incorporated Documents, as of its respective filing date, complied as to
form in all material respects with the applicable requirements for reports
on
Forms 10-K, 10-Q, and 8-K, and proxy statements under Regulation 14A, as the
case may be, under the Exchange Act and the rules and regulations of the
Commission thereunder, and for Registration Statements on Form 8-A under the
Act, and the rules and regulations of the Commission thereunder; it being
understood, however, that such counsel need not express an opinion with respect
to financial statements, schedules or other financial or statistical data,
or
exhibits included in, incorporated by reference in, or omitted from, such
reports, proxy statement and registration statement; and it being further
understood, however, in passing upon the compliance as to form of the
Incorporated Documents, such counsel may assume that the statements made therein
are correct and complete.
(ix) to
such
counsel’s knowledge, the Registration Statement has become effective under the
Act and, no stop order proceedings with respect thereto are pending or
threatened by the Commission and any required filing of the Prospectus and
any
supplement thereto pursuant to Rule 424 under the Act has been made in the
manner and within the time period required by such Rule 424;
(x) no
approval, authorization, consent or order of or filing with any governmental
or
regulatory commission, board, body, authority or agency is required in
connection with the sale of the Shares and consummation by the Company of the
transactions contemplated hereby other than registration of the Shares under
the
Act, the Exchange Act, the rules of the NASD and the rules of the New York
Stock
Exchange (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriter);
(xi) the
execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under (nor constitute any event which with notice, lapse
of
time or both would result in any breach of or constitute a default under) the
certificate of incorporation or by-laws of the Company, any applicable United
States federal law, Delaware corporate law or New York State law, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company that, in our experience, is normally applicable
to
general business corporations in relation to transactions of the type
contemplated by the Underwriting Agreement, or the charter or bylaws of the
company;
(xii) the
Company is not and, after giving effect to the offering and sale of the Shares,
will not be an “investment company,” as such term is defined in the Investment
Company Act;
(xiii) the
statements in the Registration Statement under the heading “Risk
Factors—Provision in our amended and restated certificate of incorporation and
bylaws or Delaware law might discourage, delay or prevent a change of control
of
our company or changes in our management and, therefore, depress the trading
price of our common stock.” insofar as such statements constitute a summary of
documents or matters of law, are accurate in all material respects;
and
20
(xiv) to
such
counsel’s knowledge, except as described in the Registration Statement or the
Prospectus, no person has the right, pursuant to the terms of any contract,
agreement or other instrument filed as an exhibit to the Registration Statement
or otherwise known to such counsel, to cause the Company to register under
the
Act any shares of Common Stock or shares of any other capital stock or other
equity interest of the Company, or to include any such shares or interest in
the
Registration Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of
the
Shares as contemplated thereby or otherwise.
In
addition, such counsel shall state that such counsel has participated in
conferences with certain officers and other representatives of the Company,
representatives of the Company’s independent registered public accounting firm
and representatives of the Underwriter at which the contents of the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses listed
on
Schedule
B
hereto
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or the
Permitted Free Writing Prospectuses on Schedule
B
hereto
(other than as expressly set forth in such opinion), on the basis of the
foregoing nothing has come to the attention of such counsel that causes them
to
believe that (i) the Registration Statement, as of the time such Registration
Statement was declared effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus,
as
of the date of the Prospectus Supplement and at the time of purchase contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading or (iii)
the Base Prospectus and the Permitted Free Writing Prospectuses listed on
Schedule
B,
all
considered together, as of 5:00 pm New York City Time on November 20, 2006,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and related notes and schedules thereto and other financial and
accounting data included in, or omitted from, the Registration Statement, Base
Prospectus or the Prospectus), and that such counsel does not know of any legal
or governmental proceedings required to be described in a Registration Statement
or the Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
which
are not described and filed as required.
(b) The
Company shall furnish to you, at the time of purchase, an opinion of the General
Counsel of the Company, addressed to the Underwriter, and dated the time of
purchase in form and substance reasonably satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Underwriter, stating that:
21
(i) the
Company and each of the U.S. Subsidiaries is duly qualified to do business
as a
foreign corporation and is in good standing in each jurisdiction where the
ownership or leasing of their properties or the conduct of their 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;
(ii) all
of
the issued and outstanding shares of capital stock of the Company, including
the
Shares, have been duly authorized and validly issued, are fully paid and
non-assessable and free of contractual preemptive rights, resale rights, rights
of first refusal and similar rights;
(iii) all
of
the outstanding shares of capital stock of each of the U.S. Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable
and,
except as otherwise stated in the Registration Statement and the Prospectus,
are
owned by the Company, in each case subject to no security interest, other
encumbrance or adverse claim except for any security interest, other encumbrance
or adverse claim described in the Registration Statement or pursuant to, or
contemplated by, any contract, agreement or instrument that is filed as an
exhibit to the Registration Statement; and, to such counsel’s knowledge, 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 U.S. Subsidiaries are outstanding;
(iv) the
execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under (nor constitute any event which with notice, lapse
of
time or both would result in any breach of or constitute a default under) the
certificate of incorporation or by-laws of any of the U.S. Subsidiaries, or
any
material indenture, mortgage, deed of trust, bank loan or credit agreement,
any
applicable United States federal law or New York State law, rule, regulation
or
order of any governmental agency or body or any court having jurisdiction over
any U.S. Subsidiary that, in my experience, is normally applicable to general
business corporations in relation to transactions of the type contemplated
by
the Underwriting Agreement, or the charter or bylaws of any U.S. Subsidiary
or
any agreement or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company or any U.S. Subsidiary
is
a party.
(v) neither
the Company nor any of the U.S. 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 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) its respective charter or by-laws or, to such counsel’s
knowledge, 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 the Company or any of the U.S. Subsidiaries
is
a party or by which any of them or any of their respective properties may be
bound or affected, or any law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the U.S. Subsidiaries;
and
22
(vi) to
such
counsel’s knowledge, there are no actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the Company or any
of
the Subsidiaries or any of their respective directors or officers is a party
or
to which any of their respective properties is subject at law or in equity,
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required to be described
in the Registration Statement or the Prospectus but are not so described.
In
addition, such counsel shall state that such counsel has participated in
conferences with certain officers and other representatives of the Company,
representatives of the Company’s independent registered public accounting firm
and representatives of the Underwriter at which the contents of the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses listed
on
Schedule
B
hereto
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or the
Permitted Free Writing Prospectuses on Schedule
B
hereto
(other than as expressly set forth in such opinion), on the basis of the
foregoing nothing has come to the attention of such counsel that causes them
to
believe that (i) the Registration Statement, as of the time such Registration
Statement was declared effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus,
as
of the date of the Prospectus Supplement and at the time of purchase contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading or (iii)
the Base Prospectus and the Permitted Free Writing Prospectuses listed on
Schedule
B,
all
considered together, as of 5:00 pm New York City Time on November 20, 2006,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and related notes and schedules thereto and other financial and
accounting data included in, or omitted from, the Registration Statement, Base
Prospectus or the Prospectus), and that such counsel does not know of any legal
or governmental proceedings required to be described in a Registration Statement
or the Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
which
are not described and filed as required.
(c) You
shall
have received, at the time of purchase, an opinion of Proskauer Rose LLP, on
behalf of ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or other counsel
acceptable to the Underwriter addressed to the Underwriter, and dated the time
of purchase, and in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Underwriter, stating that:
23
(i) this
Agreement, the Powers of Attorney and the Custody Agreements have been duly
executed and delivered by or on behalf of each of the Selling
Stockholders;
(ii) each
Selling Stockholder has full legal right and power, and has obtained any
authorization or approval required by law (other than those imposed by the
Act
and the securities or blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder in the
manner provided in this Agreement;
(iii) upon
payment for the Shares to be sold by the Selling Stockholders as provided in
the
Underwriting Agreement and the Custody Agreement, delivery of such Shares by
the
Custodian (acting on behalf of the Underwriter), as directed by the Underwriter,
to Cede & Co. (“Cede”) or such other nominee as may be designated by DTC,
registration of such shares in the name of Cede or such other nominee and the
crediting of such Shares on the records of DTC to securities accounts of the
Underwriter, (A) DTC shall be a “protected purchaser” of such Shares within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriter will acquire a security entitlement in respect of such Shares and
(C) no action based solely on any “adverse claim” (as defined in Section 8-102
of the UCC) to such Shares may be asserted against the Underwriter with respect
to such security entitlement (having assumed for this purpose that when such
payment, delivery and crediting occur, (w) the Underwriter and DTC are acquiring
such Shares in good faith without notice of any adverse claim (within the
meaning of Section 8-105 of the UCC), (x) such Shares will have been registered
in the name of Cede or another nominee designated by DTC, in each case on the
Company’s share registry in accordance with its certificate of incorporation,
by-laws and applicable law, (y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate
entries to the account(s) of the Underwriter on the records of DTC will have
been made pursuant to the UCC); and
(iv) each
of
the Attorneys-in-Fact of the Selling Stockholders has been duly authorized
by
each Selling Stockholder to execute and deliver on behalf of such Selling
Stockholder this Agreement and any other document necessary or desirable in
connection with the transactions contemplated hereby and to deliver the Shares
to be sold by such Selling Stockholder.
(d) You
shall
have received, at the time of purchase, an opinion, of Milbank, Tweed, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, counsel for Ares Corporate Opportunities Fund,
L.P.,
dated
the time of purchase, substantially in the form attached hereto as Exhibit
C.
(e) You
shall
have received, at the time of purchase, an opinion, of O’Melveny & ▇▇▇▇▇
LLP, counsel for Paribas North America, Inc., dated the time of purchase,
substantially in the form attached hereto as Exhibit
D.
24
(f) You
shall
have received from PricewaterhouseCoopers LLP letters dated, respectively,
the
date of this Agreement and the time of purchase and addressed to the Underwriter
in the forms heretofore approved by the Underwriter and
PricewaterhouseCoopers.
(g) You
shall
have received at the time of purchase the favorable opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated the time of purchase in form
and
substance approved by the Underwriter.
(h) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which you reasonably object in writing.
(i) The
Prospectus Supplement shall have been filed with the Commission pursuant to
Rule
424(b) under the Act before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement.
(j) Prior
to
the 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
and all amendments 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 not misleading; and (iii) 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.
(k) Between
the time of execution of this Agreement and the time of purchase, 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 the Company and the Subsidiaries taken as a whole shall occur
or become known.
(l) The
Company will, at the time of purchase deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer substantially in the form
attached as Exhibit
B
hereto.
(m) You
shall
have received a duly executed Lock-Up Agreement from each director and executive
officer of the Company and each of the Selling Stockholders.
(n) The
Company and the Selling Stockholders shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement, the Prospectus and any Permitted Free Writing
Prospectus as of the time of purchase, as you may reasonably
request.
(o) The
Selling Stockholders will at the time of purchase deliver to you a certificate
of the Attorneys-in-Fact of the Selling Stockholders to the effect that the
representations and the warranties of the Selling Stockholders as set forth
in
this Agreement are true and correct as of such date.
25
8. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the Underwriter hereunder shall be subject to termination in
the
absolute discretion of the Underwriter, 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 Prospectus and any Permitted Free Writing
Prospectuses, if any, 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 the
Company and the Subsidiaries taken as a whole, which would, in the Underwriter’s
judgment, 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 Prospectus and the Disclosure
Package, or (y) since the 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 the Company’s securities on the
New York Stock Exchange; (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
the Underwriter’s judgment or in the judgment of such group of Underwriter makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Disclosure Package, or (z) there shall have occurred any downgrading, or any
notice or announcement shall have been given or made of any intended or
potential downgrading in the rating accorded any securities of or guaranteed
by
the Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
If
the
Underwriter elects to terminate this Agreement as provided in this Section
8,
the Company and the Attorneys-in-Fact of the Selling Stockholders shall be
notified promptly in writing.
If
the
sale to the Underwriter of the Shares, as contemplated by this Agreement, is
not
carried out by the Underwriter for any reason permitted under this Agreement
or
if such sale is not carried out because the Company or the Selling Stockholders,
as the case may be, shall be unable to comply with any of the terms of this
Agreement, the Company or the Selling Stockholders, as the case may be, shall
not be under any obligation or liability under this Agreement (except to the
extent provided in Sections 5(m), 6 and 10 hereof), and the Underwriter shall
be
under no obligation or liability to the Company and the Selling Stockholders
under this Agreement (except to the extent provided in Section 10 hereof) or
to
one another hereunder.
9. [Intentionally
Omitted]
26
10. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors and officers, and any person who controls
the 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 cost of investigation) which, jointly or severally, the 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 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 the Company)
or
in the Prospectus (the term Prospectus for the purpose of this Section 10 being
deemed to include the Base Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company, any Permitted Free Writing Prospectus
or
any other “issuer free writing prospectus” (as defined in Rule 433 under the
Act), the Disclosure Package, or in any “issuer information” (as defined in Rule
433 under the Act) of the Company included in a free writing prospectus of
an
offering participant other than the Company), or arises out of or is based
upon
any omission or alleged omission to state a material fact required to be stated
in either such Registration Statement or such Prospectus or necessary to make
the statements made 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 the Underwriter furnished in writing
by
or on behalf of the Underwriter to the Company expressly for use in such
Registration Statement or such Prospectus or arises out of or is based upon
any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either the Registration Statement or such
Prospectus or necessary to make such information not misleading.
Each
Selling Stockholder, severally and not jointly, agrees to indemnify, defend
and
hold harmless the Underwriter, its partners, directors and officers, any person
who controls the 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 reasonable cost of investigation) which, jointly or severally,
the 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 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
the
Company) or in a Prospectus, or arises out of or is based upon any omission
or
alleged omission to state a material fact required to be stated in either the
Registration Statement or such Prospectus or necessary to make the statements
made therein not misleading, in each case with reference only to such Selling
Stockholder’s Selling Stockholder Information; provided,
that no
Selling Stockholder shall be responsible, either pursuant to Sections 10(a)
or
(c) or as a result of any breach of this Agreement, for losses, expenses,
liability or claims for an amount in excess of the proceeds (net of underwriting
discounts and commissions but before deducting expenses) received by such
Selling Stockholder from the sale of Shares hereunder.
27
If
any
action, suit or proceeding (each, a “Proceeding”) is brought against the
Underwriter or any such person in respect of which indemnity may be sought
against the Company or any Selling Stockholder pursuant to the foregoing
paragraphs, the Underwriter or such person shall promptly notify the Company
and
the Attorneys-in-Fact of the Selling Stockholders in writing of the institution
of such Proceeding and the Company or such Selling Stockholder, as the case
may
be, 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 the Company or the Representative of the Selling
Stockholders shall not relieve the Company or such Selling Stockholder from
any
liability which the Company or such Selling Stockholder may have to the
Underwriter or any such person or otherwise except to the extent the Company
or
such Selling Stockholder shall not have otherwise learned of such Proceeding
and
such omission results in material prejudice to the Company or such Selling
Stockholder, as the case may be. The 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 the Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Company or such Selling Stockholder in connection with the
defense of such Proceeding or the Company or such Selling Stockholder 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 that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company or such Selling Stockholder (in which case
the Company or such Selling Stockholder shall not have the right to direct
the
defense of such Proceeding on behalf of the indemnified party or parties, but
the Company or such Selling Stockholder may employ counsel and participate
in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of the Company or the Selling Stockholder), in any of which events
such
fees and expenses shall be borne by the Company or such Selling Stockholder
and
paid as incurred (it being understood, however, that the Company or such Selling
Stockholder 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). The Company or such Selling
Stockholder shall not be liable for any settlement of any Proceeding effected
without its written consent but if settled with the written consent of the
Company or such Selling Stockholder, the Company or such Selling Stockholder
agrees to indemnify and hold harmless the 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 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.
28
(b) The
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers, each Selling Stockholder, its partners, members,
directors and officers, and any person who controls the Company or any Selling
Stockholder 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, the Company,
any
Selling Stockholder 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 any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with
information concerning the Underwriter furnished in writing by or on behalf
of
the Underwriter through you to the Company expressly for use in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company), or in a Prospectus, or arises out of or
is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.
If
any
Proceeding is brought against the Company, any Selling Stockholder or any such
person in respect of which indemnity may be sought against the Underwriter
pursuant to the foregoing paragraph, the Company, such Selling Stockholder
or
such person shall promptly notify the Underwriter in writing of the institution
of such Proceeding and the 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 the Underwriter shall not relieve the Underwriter
from
any liability which the Underwriter may have to the Company, any Selling
Stockholder or any such person or otherwise. The Company, any Selling
Stockholder 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
the Company, any Selling Stockholder or such person unless the employment of
such counsel shall have been authorized in writing by the Underwriter in
connection with the defense of such Proceeding or the 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
the Underwriter (in which case the Underwriter shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties, but the Underwriter may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
the
Underwriter), in any of which events such fees and expenses shall be borne
by
the Underwriter and paid as incurred (it being understood, however, that the
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). The Underwriter shall not be liable
for any settlement of any such Proceeding effected without the written consent
of the Underwriter but if settled with the written consent of the Underwriter,
the Underwriter agrees to indemnify and hold harmless the Company, any Selling
Stockholder 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 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.
29
(c) If
the
indemnification provided for in this Section 10 is unavailable to an indemnified
party under subsections (a) and (b) of this Section 10 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 the
Company and the Selling Stockholders on the one hand and the Underwriter 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 the Company and the Selling Stockholders
on
the one hand and of the Underwriter 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 the Company and the Selling Stockholders
on
the one hand and the Underwriter 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 the Company and the Selling Stockholders and the total underwriting discounts
and commissions received by the Underwriter, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriter 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 the Company and/or the Selling Stockholders
or by the Underwriter 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 by such
party
in connection with investigating, preparing to defend or defending any
Proceeding. The obligations of the Selling Stockholders under this Section
10(c)
to contribute are several in proportion to their respective proceeds (net of
underwriting discounts and commissions but before deducting expenses) from
the
sale of the Shares hereunder and not joint. The liability under this Section
10(c) of each Selling Stockholder shall be limited to an amount equal to (I)
the
aggregate proceeds (net of underwriting discounts and commissions but before
deducting expenses) of the sale of the Shares by such Selling Stockholder
hereunder less (II) any amounts for which such Selling Stockholder has
previously made an indemnification payment to any indemnified party pursuant
to
Section 10(a) above.
30
(d) The
Company, the Selling Stockholders and the Underwriter agree that it would not
be
just and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation (even if the Underwriter 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 (c) above.
Notwithstanding the provisions of this Section 10, 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 the Underwriter and distributed to
the
public were offered to the public exceeds the amount of any damage which the
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 Underwriter’ obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
(e) The
indemnity and contribution agreements contained in this Section 10 and the
covenants, warranties and representations of the Company and the Selling
Stockholders contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the Underwriter, its
partners, directors or officers or any person (including each partner, officer
or director of such person) who controls the Underwriter within the meaning
of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf
of
the Company, its directors or officers, any Selling Stockholder or any person
who controls the Company 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. The Company, each of the Selling
Stockholders and the Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company or
the
Selling Stockholders, against any of the Company’s or Selling Stockholder’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 or the
Prospectus.
11. Information
Furnished.
(a) Underwriter.
The
statement set forth in the last paragraph on the cover page of the Prospectus
Supplement and the statements relating to sales of the Shares and transactions
with the Company set forth in the second, seventh and eighth paragraphs
under the caption “Underwriting” in the Prospectus Supplement constitute the
only information furnished by or on behalf of the Underwriter as such
information is referred to in Sections 3 and 10 hereof.
(b) Selling
Stockholders.
The
name of such Selling Stockholder, the number of Shares to be sold by such
Selling Stockholder and other information with respect to such Selling
Stockholder (excluding any percentages) which appears under the caption “Selling
Stockholders” in the Prospectus Supplement constitute the only information
furnished by or on behalf of each Selling Stockholder as such information
referred to in Sections 4 and 10 hereof.
12. Notices.
Except
as otherwise herein provided,
all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriter, shall be sufficient in all respects if delivered
or
sent to Credit Suisse, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director; if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices
of
the Company at ▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
and if to the Selling Stockholders, shall be sufficient in all respects if
delivered or sent to the Attorneys-in-Fact of the Selling Stockholders at ▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
31
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 Company, the Underwriter and each of the Selling
Stockholders consent to the jurisdiction of such courts and personal service
with respect thereto. The Company, the Underwriter and each of the Selling
Stockholders hereby consents to personal jurisdiction, service and venue in
any
court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against the Underwriter or any indemnified party.
The Underwriter, each of the Selling Stockholders and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) waives 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. The Company and each of the Selling
Stockholders agrees that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon
them
and may be enforced in any other courts to the jurisdiction of which the Company
or such Selling Stockholder is 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
Underwriter, the Selling Stockholders and the Company and to the extent provided
in Section 10 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 Underwriter) 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 Underwriter, each of the Selling
Stockholders and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company’s, each the Selling
Stockholder’s and any of the Underwriter’ respective businesses and/or
assets.
18. Miscellaneous.
The
Underwriter hereby waives any conflict of interest due to Proskauer Rose LLP’s
representation of the Company and certain of the Selling Stockholders in the
transactions contemplated by this Agreement and hereby consents to such
representation.
32
19. No
Fiduciary Duty.
The
Company and the Selling Stockholders hereby acknowledge that the Underwriter
is
acting solely as an underwriter in connection with the purchase and sale of
the
Company’s securities. The Company and Selling Stockholders further acknowledge
that (i) the Underwriter is 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 Underwriter act or be responsible as a
fiduciary to the Company, its management, stockholders, creditors, the Selling
Stockholders or any other person in connection with any activity that the
Underwriter may undertake or have undertaken in furtherance of the purchase
and
sale of the Company’s securities, either before or after the date hereof and
(ii) the Company and the Selling Stockholders have been advised that the
Underwriter and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling
Stockholders and that the Underwriter has no obligation to disclose such
interests and transactions to the Company or the Selling Stockholders by virtue
of any fiduciary, advisory or agency relationship. The Underwriter hereby
expressly disclaims any fiduciary or similar obligations to the Company and
the
Selling Stockholders, either in connection with the transactions contemplated
by
this Agreement or any matters leading up to such transactions, and the Company
and the Selling Stockholders hereby confirm their understanding and agreement
to
that effect. The Company, the Selling Stockholders and the Underwriter 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 Underwriter to the Company or the Selling Stockholders regarding such
transactions, including but not limited to any opinions or views with respect
to
the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company or the Selling Stockholders. The Company and
the
Selling Stockholders hereby waive and release, to the fullest extent permitted
by law, any claims that the Company and the Selling Stockholders may have
against the Underwriter with respect to any breach or alleged breach of any
fiduciary or similar duty to the Company or the Selling Stockholders in
connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions.
[Remainder
of page left blank intentionally
Signature
page follows]
33
If
the
foregoing correctly sets forth the understanding among the Company, the Selling
Stockholders and the Underwriter, please so indicate in the space provided
below
for the purpose, whereupon this agreement and your acceptance shall constitute
a
binding agreement among the Company, the Selling Stockholders and the
Underwriter, severally.
| Very truly yours, | ||
| MAIDENFORM BRANDS, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
||
|
Chief
Executive Officer
|
||
| THE SELLING STOCKHOLDERS NAMED IN | ||
| SCHEDULE A ATTACHED HERETO | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
||
|
Attorney-in-fact
|
||
Accepted
and agreed to as of the
date
first above written
| CREDIT SUISSE SECURITIES (USA) LLC | |||
| By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |||
|
|
|||
| Name:
▇▇▇
▇▇▇▇▇▇▇▇ Title: Managing Director |
34
SCHEDULE
A
|
Selling
Stockholders
|
Number
of Shares
|
|||
|
Ares
Corporate Opportunities Fund, L.P.
|
3,662,649
|
|||
|
Paribas
North America, Inc.
|
233,786
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
47,177
|
|||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
42,717
|
|||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
13,671
|
|||
|
Total
|
4,000,000
|
|||
SCHEDULE
B
Permitted
Free Writing Prospectus
None.
Schedule
C
Subsidiaries
Dormant
Subsidiaries 100% owned By Maidenform, Inc.:
▇▇▇▇▇▇▇▇▇
Needle Craft, Inc. - NY Corporation - Dormant
▇▇▇▇▇▇▇▇
Needlecraft, Inc. - NY Corporation - Dormant
Maidenform
(UK) Limited - NY Corporation - Dormant
Dormant
Subsidiaries 100% owned by NCC Industries, Inc.
Crescent
Industries, Inc.
Exhibit
A
Common
Stock
($0.01
par value)
November
20, 2006
To
the
Underwriter listed on Schedule I hereto
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 Maidenform Brands, Inc. (the “Company”) and you, as the underwriter (the
“Underwriter”) named therein, with respect to the public offering (the
“Offering”) of Common Stock, par value $0.01 per share, of the Company (the
“Common Stock”) by the selling stockholders pursuant to a Registration Statement
on Form S-3 (File No. 333-138314), which has been filed with the Securities
and
Exchange Commission (the “Commission”).
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that for a period of 90 days after the date of the final prospectus supplement
relating to the Offering, the undersigned will not, without your prior written
consent, (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 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, (the “Exchange Act”) 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, (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
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). The restrictions contained in the foregoing
sentence shall not apply to (a) the registration of or sale to the Underwriter
of any Common Stock pursuant to the Offering and the Underwriting Agreement,
(b)
distributions of shares of Common Stock to partners, members or stockholders
of
the undersigned, provided
that (x)
such transferee agrees in writing with the Underwriter to be bound by the terms
of this Lock-Up Letter Agreement, and (y) no filing by any party under the
Exchange Act shall be required or shall be voluntarily made reporting a
reduction in beneficial ownership of shares of common stock during the lock-up
period, (c) bona fide gifts, provided
the
recipient thereof agrees in writing with the Underwriter 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, (d) dispositions to any trust, family limited partnership or family
limited liability company for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, provided
that
such trust, family limited partnership or family limited liability company
agrees in writing with the Underwriter 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, (e) transfers of shares
of
Common Stock by will or intestacy to the undersigned’s immediate family,
provided
that
such transferee agrees in writing with the Underwriter to be bound by the terms
of this Lock-Up Letter Agreement, (f) the exercise of any stock options on
a
“cashless” or “net exercise” basis in accordance with the terms thereof,
provided, that the shares of Common Stock acquired upon such exercise shall
be
subject to the restrictions contained in the foregoing sentence, or (g)
open-market sales of shares of Common Stock acquired by the undersigned in
the
open-market after the consummation of the Offering, provided
that no
filing under Section 13 or Section 16 of the Exchange Act is required in
connection with such sales. For purposes of this Lock-Up Letter Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin.
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, for a period of 90 days after the date of the final prospectus supplement
relating to the Offering, the undersigned will not, without your prior written
consent, make any demand for, or exercise any right with respect to, the
registration of 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.
In
furtherance of the foregoing, the Company and its transfer agent and registrar
are hereby authorized to decline to make any transfer of shares of Common Stock
or other securities if such transfer would constitute a violation or breach
of
this Agreement.
If
(i)
the Company notifies you in writing that the demanding selling stockholder
does
not intend to proceed with the Offering, (ii) the registration statement filed
with the Commission with respect to the Offering is withdrawn, (iii) for any
reason the Underwriting Agreement shall be terminated prior to the time of
purchase (as defined in the Underwriting Agreement), or (iv) the Offering does
not occur on or prior to December 31, 2006, this Lock-Up Letter Agreement shall
be terminated and the undersigned shall be released from its obligations
hereunder.
| Yours very truly, | ||
| |
|
|
|
Name: |
||
Schedule
I
Underwriter
Credit
Suisse Securities (USA) LLC
Exhibit
B
Officers’
Certificate
| 1. | I have reviewed the Registration Statement and the Prospectus. |
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2.
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The
representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and the
closing
time.
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3.
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The
Company has performed all of its obligations under this Agreement
as are
to be performed at or before the time of
purchase.
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4.
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The
conditions set forth in paragraphs (j) and (k) of Section 7 of this
Agreement have been met.
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5.
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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 the dates, and for the periods presented, in the
Registration Statement.
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Exhibit
C
Form
of Milbank Opinion
1. No
consent, approval, authorization, filing with or order of any Federal, Delaware
State or New York State court or governmental agency or regulatory body thereof
is required to be obtained or made by the Selling Stockholder by any Applicable
Law applicable to the Selling Stockholder for the consummation of the
transactions contemplated by the Selling Stockholder under the Underwriting
Agreement, except, in each case, for (i) such as may be required under the
“blue
sky” or securities laws of any state of the United States in connection with the
offer and sale of the Shares by the Underwriter, (ii) such consents, filings,
approvals, authorizations, orders, registrations or qualifications as have
been
obtained under the Securities Act, the Exchange Act and the rules and
regulations under the Securities Act and the Exchange Act, (iii) such as may
be
required by the rules and regulations of the NASD, Inc., and (iv) such other
approvals, notices and consents as have been obtained or delivered.
“Applicable
Law”
means
the Delaware Revised Uniform Partnership Act and those laws and regulations
of
the State of New York and those Federal laws and regulations of the United
States of America that in each case, in our experience, are customarily
recognized to apply to transactions of the kind contemplated by the Underwriting
Agreement..
2. The
Custody Agreement and Power of Attorney have been duly authorized, executed
and
delivered by the Selling Stockholder.
3. The
Underwriting Agreement when executed by the Attorney-in-Fact of the Selling
Stockholders (as defined in the Underwriting Agreement) pursuant to the Custody
Agreement and Power of Attorney will be duly authorized, executed and delivered
on behalf of the Selling Stockholder.
4. Upon
payment for the Shares to be sold by the Selling Stockholder to the Underwriter
as provided in the Underwriting Agreement, the delivery of the Shares to Cede
or
such other nominee as may be designated by DTC, the registration of the Shares
in the name of Cede or such other nominee and the crediting of the Shares on
the
records of DTC to security accounts in the name of the Underwriter (assuming
the
Underwriter has no notice of any “adverse claim” (as such term is defined in
Section 8-102(a)(1) of the NYUCC) to any “security entitlement” (within the
meaning of Section 8-102(a)(17) of the NYUCC) in respect of the Shares), (A)
under Section 8-501 of the NYUCC, the Underwriter will acquire a “security
entitlement” in respect of the Shares and (B) no action based on any adverse
claim to such security entitlement may be asserted against the
Underwriter.
Exhibit
D
Form
of O’Melveny & ▇▇▇▇▇ LLP Opinion
1. The
execution, delivery and performance of the Underwriting Agreement have been
duly
authorized by all necessary corporate action on the part of the Selling
Stockholder and when executed by the Attorney-in-Fact of the Selling Stockholder
(as defined in the Underwriting Agreement) pursuant to the Power of Attorney
and
Custody Agreement, will be duly executed and delivered on behalf of the Selling
Stockholder.
2. The
execution, delivery and performance of the Power of Attorney and the Custody
Agreement have has been duly authorized by all necessary corporate action on
the
part of the Selling Stockholder.
3. The
Selling Stockholder’s performance of its obligations under the Power of
Attorney, the Custody Agreement and the Underwriting Agreement does not violate
the Selling Stockholder’s organizational documents or material contracts
identified in the Selling Stockholder’s Certificate.
4. The
Selling Stockholder’s performance of its obligations under the Power of
Attorney, the Custody Agreement and the Underwriting Agreement will not breach
or otherwise violate any existing obligation or restriction on the Selling
Stockholder under any order, judgment, or decree of any federal court or
governmental authority on the Selling Stockholder Certificate.
5. Upon
delivery to the Underwriter of the certificate evidencing the Shares to be
sold
by the Selling Stockholder endorsed to the Underwriter in blank and payment
therefore by the Underwriter in accordance with the Underwriting Agreement,
assuming the Underwriter is acquiring the Shares to be sold by the Selling
Stockholder without notice of any adverse claim, the Underwriter will acquire
the Shares to be sold by the Selling Stockholder free and clear of any adverse
claim as defined in Division 8 of the Uniform Commercial Code (the
“UCC”).