Exhibit 1.1
7,916,163 SHARES
COMMERCIAL VEHICLE GROUP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
June [ ], 2005
CREDIT SUISSE FIRST BOSTON LLC,
XXXXXX X. XXXXX & CO. INCORPORATED,
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. Commercial Vehicle Group, Inc., a Delaware corporation
("COMPANY") proposes to issue and sell 1,500,000 shares of its Common Stock, par
value $0.01 per share ("SECURITIES"), and the stockholders listed in Schedule A
hereto ("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
6,416,163 outstanding shares of the Securities (such 7,916,163 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"), to the
Underwriters (as defined below), for whom Credit Suisse First Boston LLC and
Xxxxxx X. Xxxxx & Co. Incorporated are acting as representatives (the
"REPRESENTATIVES"). The Company also proposes to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 1,187,424
additional shares of its Securities as set forth below (such 1,187,424
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES").
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES". The Company and the Selling Stockholders hereby agree
with the several Underwriters named in Schedule B hereto ("UNDERWRITERS") as
follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-125626) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act
and, if so filed, has become effective upon filing pursuant to such
Rule and the Offered Securities all have been duly registered under the
Act pursuant to the initial registration statement and, if applicable,
the additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement means (A) if
the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the
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Act or (if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date
of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof,
or relating to the Selling Stockholders, furnished in writing to the
Company by a Selling Stockholder specifically for use therein.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
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(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own or lease its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
all of the issued and outstanding capital stock or other equity
interests of each subsidiary of the Company has been duly authorized
and validly issued and, in the case of each subsidiary that is
organized as a corporation, is fully paid and nonassessable; all
capital contributions with respect to the outstanding membership
interests of each subsidiary of the Company that is a limited liability
company have been made to such subsidiary; and the capital stock of
each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects (other than transfer
restrictions imposed under applicable securities laws and liens granted
to the lenders under the Revolving Credit and Term Loan Agreement dated
as of August 10, 2004, among the Company, certain of its subsidiaries,
U.S. Bank National Association, as administrative agent, Comerica Bank,
as syndication agent, and the lenders party thereto, as amended).
(v) The entities listed on Schedule C hereto are the only
subsidiaries of the Company.
(vi) No subsidiary, other than the subsidiaries indicated as
"significant subsidiaries" on Schedule C hereto, as of December 31,
2004, was a "significant subsidiary" within the meaning of Regulation
S-X under the Act.
(vii) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform in all material
respects to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Securities.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(ix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act that have not otherwise
been complied with or waived.
(x) The Company's common stock is listed on The Nasdaq
National Market.
(xi) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the
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Company for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except
such as have been obtained and made under the Act and the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), and such as may be required
under state securities laws or rules of the National Association of
Securities Dealers, Inc. (the "NASD").
(xii) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein contemplated
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (a) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or (b) any
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or (c) the charter or by-laws of the Company or any such
subsidiary, other than, in the case of (a) and (b), conflicts or
breaches that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects the enforcement of which would
reasonably be expected to have a Material Adverse Effect; and except as
disclosed in the Prospectus, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or
to be made thereof by them and no material default has occurred or is
continuing under any material lease to which the Company or any of its
subsidiaries is a party.
(xv) The Company and its subsidiaries possess adequate
certificates, authorizations or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except for such certificates, authorizations or
permits the absence of which, individually or in the aggregate, would
not have a Material Adverse Effect and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xvi) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that would reasonably be expected to have a Material Adverse Effect.
(xvii) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual
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property rights that, if determined adversely to the Company or any of
its subsidiaries, which individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(xix) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and, to
the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(xx) The financial statements, together with related notes,
included in each Registration Statement and the Prospectus present
fairly in all material respects the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in accordance with the
generally accepted accounting principles in the United States applied
on a consistent basis; the schedules included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding financial
statement amounts.
(xxi) Each of the Company and its consolidated subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (a) transactions are executed in accordance
with management's general or specific authorizations; (b) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (c) access to assets is permitted only
in accordance with management's general or specific authorization; and
(d) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(xxii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xxiii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(xxiv) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xxv) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (A) The
minimum funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder ("ERISA"), has been satisfied by
each "pension plan" (as defined in Section 3(2) of ERISA) which has
been established or maintained by the Company and/or one or more of its
subsidiaries, each plan which is intended to be qualified under Section
401 of the Code is so qualified; (B) each of the Company and its
subsidiaries has fulfilled its obligations, if any, under Section 515
of ERISA; (C) neither the Company nor any of its subsidiaries maintains
or is required to contribute to a "welfare plan" (as defined in Section
3(1) of ERISA) which provides retiree or other post-employment welfare
benefits or insurance coverage (other than "continuation coverage" (as
defined in Section 602 of ERISA)); (D) each pension plan and welfare
plan established or maintained by the Company and/or one or more of its
subsidiaries is in compliance with the currently applicable provisions
of ERISA and the Code; and (E) neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability under
Title IV of ERISA.
(xxvi) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their
capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "XXXXXXXX-XXXXX ACT"), including Section 402 related to
loans and Sections 302 and 906 related to certifications, to the extent
such sections are applicable.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has (other than with respect to
Offered Securities which underly outstanding options as to which such
Selling Stockholder holds a valid and unencumbered title) and on the
First Closing Date (as defined below) will have valid
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and unencumbered title to the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer
and deliver the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date hereunder; and upon the delivery of
and payment for the Offered Securities to be sold by such Selling
Stockholder on the First Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date.
(ii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by such Selling Stockholder for the consummation
of the transactions contemplated by this Agreement in connection with
the sale of the Offered Securities sold by such Selling Stockholder,
except such as have been obtained and made under the Act and the
Exchange Act and such as may be required under state securities laws or
the rules of the NASD.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(v) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement did not include, or
will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus did not include, or will not include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will not include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. This paragraph
2(b)(v) applies only to statements in or omissions from a Registration
Statement or the Prospectus that relate to such Selling Stockholder and
are based upon written information furnished to the Company by such
Selling Stockholder specifically for use therein.
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(vi) The sale of the Offered Securities by such Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set
forth in the Prospectus or any supplement thereto.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $[ ] per share, that number
of Firm Securities (rounded up or down, as determined by Credit Suisse First
Boston LLC ("CSFB") in its discretion, in order to avoid fractions) obtained by
multiplying 1,500,000 Firm Securities in the case of the Company and the number
of Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto, in the case of a Selling Stockholder, in each case by a
fraction the numerator of which is the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule B hereto and the denominator
of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders listed on Schedule D-1 (the "CUSTODIAL SELLING
STOCKHOLDERS") hereunder have been placed in custody, for delivery under this
Agreement, under Custody Agreements (the "CUSTODY AGREEMENTS") made with Hidden
Creek Partners, as custodian ("CUSTODIAN"). The Selling Stockholders other than
the Custodial Selling Stockholders (the "ONEX SELLING STOCKHOLDERS") have
entered into an irrevocable power of attorney appointing Onex American Holdings
II LLC as attorney-in-fact for each Onex Selling Stockholder, with full power
and authority to act in the name of and for and on behalf of each such Onex
Selling Stockholder with respect to all matters arising in connection with the
sale of Securities by each such Onex Selling Stockholder.
Each Custodial Selling Stockholder agrees that the shares represented
by the certificates held in custody for the Custodial Selling Stockholders under
such Custody Agreements are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Custodial Selling Stockholders for
such custody are to that extent irrevocable, and that the obligations of the
Custodial Selling Stockholders hereunder shall not be terminated by operation of
law, whether by the death of any individual Custodial Selling Stockholder or the
occurrence of any other event, or in the case of a trust, by the death of any
trustee or trustees or the termination of such trust. If any individual
Custodial Selling Stockholder or any such trustee or trustees should die, or if
any other such event should occur, or if any of such trusts should terminate,
before the delivery of the Offered Securities hereunder, certificates for such
Offered Securities shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death or other event or termination.
The Company, the Custodian and the Onex Selling Stockholders will
deliver the Firm Securities to the Representatives for the accounts of the
Underwriters, against payment of the purchase price in Federal (same day) funds
by official bank check or checks or wire transfer to an account at a bank
acceptable to CSFB drawn to the order of the Company in the case of 1,500,000
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shares of Firm Securities, the Custodian in the case of [ ] shares of Firm
Securities and Onex American Holdings II LLC in the case of [ ] shares of Firm
Securities, at the office of Cravath, Swaine & Xxxxx LLP, at 10:00 A.M., New
York time, on [ ], 2005, or at such other time not later than seven full
business days thereafter as CSFB and the Company determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Exchange Act, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFB
requests and will be made available for checking and packaging at the office of
Cravath, Swaine & Xxxxx LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company from
time to time (not to exceed three times) not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased from the Company for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFB to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time (not to
exceed three times) and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFB to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased from the Company on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters,
against payment of the purchase price therefor in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank
acceptable to CSFB drawn to the order of the Company with respect to the
Optional Securities being so purchased on such Optional Closing Date, at the
office of Cravath, Swaine & Xxxxx LLP. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFB requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the office of Cravath, Swaine & Xxxxx LLP at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
10
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFB, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
CSFB.
(b) The Company will advise CSFB promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or the
related prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without CSFB's consent; and the Company will also
advise CSFB promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this Agreement)
and of any amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its reasonable
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFB of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFB's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the end of
such fourth fiscal quarter.
11
(e) The Company will furnish to the Representatives copies of each
Registration Statement (four of which will be signed and one of which will
include all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in such
quantities as CSFB reasonably requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so furnished
as soon as available. The Company and the Selling Stockholders will pay the
expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB designates and
will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be required to
qualify to do business, consent to service of process or become subject to
taxation in any jurisdiction in which it has not already done so.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Exchange Act or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFB may reasonably request.
(h) For the period specified below (the "LOCK-UP PERIOD"), the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, or file with the Commission a registration statement under the
Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Representatives. The initial Lock-Up Period will commence on the date of this
Agreement and continue for 90 days after the public offering date set forth on
the final prospectus used to sell the Securities (the "PUBLIC OFFERING DATE") or
such earlier date that the Representatives consent to in writing; provided,
however, that if (1) during the last 17 days of the initial Lock-Up Period, the
Company releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the initial Lock-Up Period, then in
each case, the Lock-Up Period will be extended until the expiration of the
18-day period beginning on the date of release of the earnings results or the
occurrence of the material news or material event, as applicable, unless the
Representatives waive, in writing, such extension. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
paragraph 5(h). Any Securities acquired in the open market, and any Securities
sold in the Offering pursuant to this Agreement, will not be subject to this
paragraph 5(h). A transfer of Securities to a family member, trust or controlled
affiliate may be made, provided the transferee agrees to be bound in writing by
the terms of this paragraph 5(h). In addition, the Company may transfer
Securities or securities convertible into or exchangeable or exercisable for
Securities pursuant to a sale of 100% of the outstanding Securities (including,
without limitation, in connection with a tender offer for such Securities or by
way of merger of the Company with
12
another person) to a third party or group of third parties that are not
affiliates of the Company, provided that the third party or group of third
parties agrees in writing to be bound by the restrictions set forth herein until
such time as such third party or group of third parties has acquired 100% of the
outstanding Securities of the Company.
(i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company and such Selling Stockholder will pay all expenses
incident to the performance of the obligations of the Company and such Selling
Stockholder, as the case may be, under this Agreement; the Company will pay for
any filing fees and other expenses (including fees and disbursements of counsel)
in connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing of memoranda
relating thereto, for the filing fee incident to the review by the NASD of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities (provided
that the Underwriters and the Company shall be responsible for 75% and 25%,
respectively, of all expenses related to the charter of aircraft in connection
with attending or hosting such meetings) and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters and each Selling
Stockholder will pay for any transfer taxes on the sale by such Selling
Stockholder of the Offered Securities to the Underwriters. Nothing in this
paragraph 5(i) amends or otherwise alters any existing agreement among the
Company and the Selling Stockholders with respect to responsibilities for
expenses in connection with the registration of the Offered Securities.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy in all material respects of the statements of Company officers made
pursuant to the provisions hereof, to the performance in all material respects
by the Company and the Selling Stockholders of their obligations hereunder and
to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Deloitte & Touche LLP confirming that they are independent
certified public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
Public Company Accounting Oversight Board ("PCAOB") for a review of
interim financial information as
13
described in PCAOB Interim Standard AU 772, Interim Financial
Information, on the unaudited financial statements included in the
Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in total debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated total assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants, or to a subsequent specified date not more
than three business days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated revenue or net
operating income in the total or per share amounts of
consolidated net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter; and
(v) they have read the unaudited pro forma financial
statements included in the Registration Statements, and after inquiries
with certain officials of the Company who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that such
financial statements
14
do not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFB. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFB. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representatives, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (v) any suspension of trading of
any securities of the Company on any exchange or in the over-
15
the-counter market; (vi) any banking moratorium declared by U.S. Federal or New
York authorities; (vii) any major disruption of settlements of securities or
clearance services in the United States or (viii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxx & Xxxxx LLP, counsel for the Company, substantially in
the form of Exhibit A hereto.
(e) If such Closing Date is the First Closing Date, the Representatives
shall have received an opinion, dated such Closing Date, of Xxxxxxxx & Xxxxx
LLP, counsel for the Selling Stockholders listed on Schedule D-2, in the form of
Exhibit B hereto.
(f) If such Closing Date is the First Closing Date, the Representatives
shall have received an opinion, dated such Closing Date, of Xxxx Xxxxxxx LLP,
counsel for the Selling Stockholders listed on Schedule D-3, in the form of
Exhibit C hereto.
(g) [Intentionally omitted.]
(h) The Representatives shall have received from Cravath, Swaine &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the validity of
the Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives may
require, and the Selling Stockholders and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(i) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(j) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except
16
that the specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this subsection.
(k) The Representatives shall have received a certificate, dated such
Closing Date, from Xxxx X. Xxxxx, Chief Financial Officer of the Company,
substantially in the form of Exhibit E.
(l) On or prior to the date of this Agreement, the Representatives
shall have received lock-up letters from each of the executive officers and
directors of the Company and each existing stockholder of the Company
substantially in the form of Exhibit F.
(m) The Custodian will deliver to CSFB a letter stating that they will
deliver to each Custodial Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by the
United States Treasury Department regulations in lieu thereof) on or before
January 31 of the year following the date of this Agreement.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with (a) written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein or (b)
written information furnished to the Company by the Selling Stockholders
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in subsection (c) below.
(b) Each Selling Stockholder, severally and not jointly will indemnify
and hold harmless each Underwriter, its partners, members, directors and
officers and each person who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration
17
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Selling
Stockholder specifically for use therein, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the fourth, twelfth and
thirteenth paragraphs under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof in writing; but the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under subsection
(a), (b) or (c) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or
18
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such (i) settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company or such Selling Stockholder on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company or such Selling Stockholder on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company or such Selling Stockholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company or such Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no Selling
Stockholder shall be required to contribute an amount in excess of the net
proceeds from the offering actually received by such Selling Stockholder under
this Agreement or to contribute any amount in respect of losses, claims, damages
or liabilities that it would not be obligated to indemnify under Section 7(b).
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
19
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
(g) The aggregate liability of each Selling Stockholder under the
indemnity and contribution agreements contained in this Section 7 shall be
limited to an amount equal to the net proceeds from the offering of the
Securities provided hereunder actually received by such Selling Stockholder
hereunder.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFB, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
several Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
20
10.Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representatives at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Transactions Advisory Group, in the case of CSFB, and 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, Attention: [ ], in the case
of Xxxxxx X. Xxxxx & Co., Incorporated or, if sent to the Company, will be
mailed, delivered or faxed and confirmed to it at Commercial Vehicle Group,
Inc., 0000 Xxxx Xxxxxx Xxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx Xxxx,
President and Chief Executive Officer, or, if sent to the Selling Stockholders
or any of them, will be mailed, delivered or faxed and confirmed to each of them
at its respective address set forth on Schedule A hereto; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12.Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives will be binding
upon all the Underwriters. Hidden Creek Partners will act for the Custodial
Selling Stockholders in connection with such transactions, and any action under
or in respect of this Agreement taken by Hidden Creek Partners will be binding
upon all the Custodial Selling Stockholders. Onex American Holdings II LLC will
act for the Onex Selling Stockholders in connection with such transactions, and
any action under or in respect of this Agreement taken by Onex American Holdings
II LLC will be binding upon all the Onex Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Absence of Fiduciary Relationship. The Company and the Selling
Stockholders acknowledge and agree that:
(a) the Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered Securities and that no
fiduciary, advisory or agency relationship between the Company or the Selling
Stockholders and the Representatives have been created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether the
Representatives have advised or are advising the Company or the Selling
Stockholders on other matters;
(b) the price of the Offered Securities set forth in this Agreement was
established by the Company and the Selling Stockholders following discussions
and arms-length negotiations with the Representatives and the Company and the
Selling Stockholders are capable of evaluating and understanding and understand
and accept the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) they have been advised that the Representatives and their
affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Selling Stockholders and
that the Representatives have no obligation to disclose such
21
interests and transactions to the Company or the Selling Stockholders by virtue
of any fiduciary, advisory or agency relationship; and
(d) they waive, to the fullest extent permitted by law, any claims they
may have against the Representatives for breach of fiduciary duty or alleged
breach of fiduciary duty and agree that the Representatives shall have no
liability (whether direct or indirect) to the Company or the Selling
Stockholders in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company or the
Selling Stockholders, including stockholders, employees or creditors of the
Company or the Selling Stockholders.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
COMMERCIAL VEHICLE GROUP, INC.,
By
--------------------------------
Name:
Title:
ONEX AMERICAN HOLDINGS II LLC,
By
--------------------------------
Name:
Title:
XXXXXXX EXECUTIVE INVESTCO LLC,
By
--------------------------------
Name:
Title:
CVS EXECUTIVE INVESTCO LLC,
By
--------------------------------
Name:
Title:
ONEX DHC LLC,
By
--------------------------------
Name:
Title:
TRIM SYSTEMS EXECUTIVE INVESTCO LLC,
By
--------------------------------
Name:
Title:
23
TRIM SYSTEMS EXECUTIVE INVESTCO II LLC,
By
--------------------------------
Name:
Title:
XXXXXXX PARTNERS LP,
By
--------------------------------
Name:
Title:
1170821 ONTARIO INC.,
By
--------------------------------
Name:
Title:
1170809 ONTARIO INC.,
By
--------------------------------
Name:
Title:
1170812 ONTARIO INC.,
By
--------------------------------
Name:
Title:
KYZALEA COMPANY,
By
--------------------------------
Name:
Title:
1170819 ONTARIO INC.,
By
--------------------------------
Name:
Title:
24
1170698 ONTARIO INC.,
By
--------------------------------
Name:
Title:
1301449 ONTARIO INC.,
By
--------------------------------
Name:
Title:
1352536 ONTARIO INC.
By
--------------------------------
Name:
Title:
1376653 ONTARIO INC.,
By
--------------------------------
Name:
Title:
1352537 ONTARIO INC.,
By
--------------------------------
Name:
Title:
XXX XXXXXXXXX,
By
--------------------------------
Name:
Title:
3-G INVESTMENTS LIMITED,
By
--------------------------------
Name:
Title:
25
XXXXX XXXXX,
By
--------------------------------
Name:
Title:
XXXXX XXXX,
By
--------------------------------
Name:
Title:
J.W.E. XXXXX,
By
--------------------------------
Name:
Title:
XXXXXX XXXXXXXX,
By
--------------------------------
Name:
Title:
1299039 ONTARIO INC.,
By
--------------------------------
Name:
Title:
2668921 MANITOBA LTD.,
By
--------------------------------
Name:
Title:
ONEX ADVISOR III LLC,
By
--------------------------------
Name:
Title:
26
CVS PARTNERS, LP,
By
--------------------------------
Name:
Title:
3062601 NOVA SCOTIA COMPANY,
By
--------------------------------
Name:
Title:
HIDDEN CREEK INDUSTRIES,
By
--------------------------------
Name:
Title:
AMON CANADIAN INVESTMENTS LTD.,
By
--------------------------------
Name:
Title:
MHON CANADIAN INVESTMENTS LTD.,
By
--------------------------------
Name:
Title:
XXXXX CAPITAL PARTNERS III L.P.,
By
--------------------------------
Name:
Title:
XXXXX CAPITAL PARTNERS II L.P.,
By
--------------------------------
Name:
Title:
27
BCP III AFFILIATES FUND L.P.,
By
--------------------------------
Name:
Title:
BCP III SPECIAL AFFILIATES L.P.,
By
--------------------------------
Name:
Title:
BCP II AFFILIATES FUND L.P.,
By
--------------------------------
Name:
Title:
X.X. XXXXXXX,
By
--------------------------------
Name:
Title:
XXXXXXXX STREET PARTNERS II,
By
--------------------------------
Name:
Title:
XXXX-XXXXXX X. XXXXXXX TRUST,
By
--------------------------------
Name:
Title:
28
XXXXXXX XXXXXXXXXXX,
By
--------------------------------
Name:
Title:
XXXX X. READ,
By
--------------------------------
Name:
Title:
XXXXX X. XXXXX,
By
--------------------------------
Name:
Title:
XXXXX XXXXXXX,
By
--------------------------------
Name:
Title:
XXXXX XXXXX,
By
--------------------------------
Name:
Title:
XXXX X. XXXXX,
By
--------------------------------
Name:
Title:
XXXXXX XXXX,
By
--------------------------------
Name:
Title:
XXXXX X. XXXXXXXX,
By
--------------------------------
Name:
Title:
29
XXXXXX XXXXXXX,
By
--------------------------------
Name:
Title:
XXXXXX X. XXXXXXXXX,
By
--------------------------------
Name:
Title:
XXXXXX X. XXXXXXXX,
By
--------------------------------
Name:
Title:
XXXXXXX XXXXX,
By
--------------------------------
Name:
Title:
XXXXXXX XXXXXX,
By
--------------------------------
Name:
Title:
XXXXX XXXXXXXX,
By
--------------------------------
Name:
Title:
XXXXXX XXXXXXX,
By
--------------------------------
Name:
Title:
30
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
--------------------------------
Name:
Title:
XXXXXX X. XXXXX & CO. INCORPORATED
By
--------------------------------
Name:
Title:
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
31
SCHEDULE A
NUMBER OF FIRM
SECURITIES
SELLING STOCKHOLDER ADDRESS TO BE SOLD
------------------- ------- ----------
c/o Onex Investment Corp. [ ]
Onex American Holdings II LLC 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Executive Investco LLC c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
CVS Executive Investco LLC c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Onex DHC LLC c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Trim Systems Executive Investco LLC c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Trim Systems Executive Investco II LLC c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Partners LP c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1170821 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1170809 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1170812 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Kyzalea Company c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1170819 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1170698 Ontario Inc. c/o Onex Investment Corp. [ ]
32
NUMBER OF FIRM
SECURITIES
SELLING STOCKHOLDER ADDRESS TO BE SOLD
------------------- ------- ----------
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1301449 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1352536 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1376653 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1352537 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxx Xxxxxxxxx c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
3-G Investments Limited c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxx c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxx c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
J.W.E. Xxxxx c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxxx c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1299039 Ontario Inc. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
2668921 Manitoba Ltd. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Onex Advisor III LLC c/o Onex Investment Corp. [ ]
33
NUMBER OF FIRM
SECURITIES
SELLING STOCKHOLDER ADDRESS TO BE SOLD
------------------- ------- ----------
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
CVS Partners, LP c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
3062601 Nova Scotia Company c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Hidden Creek Industries 4508 IDS Center [ ]
Xxxxxxxxxxx, XX 00000
AMON Canadian Investments Ltd. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
MHON Canadian Investments Ltd. c/o Onex Investment Corp. [ ]
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Capital Partners III L.P. c/o Baird Capital Partners [ ]
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxxxxx
Xxxxx Capital Partners II L.P. c/o Baird Capital Partners [ ]
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxxxxx
BCP III Affiliates Fund L.P. c/o Baird Capital Partners [ ]
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxxxxx
BCP III Special Affiliates L.P. c/o Baird Capital Partners [ ]
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxxxxx
BCP II Affiliates Fund L.P. c/o Baird Capital Partners [ ]
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
34
NUMBER OF FIRM
SECURITIES
SELLING STOCKHOLDER ADDRESS TO BE SOLD
------------------- ------- ----------
Attn: C. Xxxxxx Xxxxxxxx
X.X. Xxxxxxx c/o OG Partners [ ]
000 Xxxxx Xxxx Xxxx
Xxx. 000
Xxxxxxx, XX 00000
Xxxxxxxx Street Partners II c/o Kirkland & Xxxxx LLP [ ]
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxx-Xxxxxx X. Xxxxxxx Trust c/o Hidden Creek [ ]
0000 XXX Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxxxx 0000 X. Xxxxxx [ ]
Xxxxxxxxx, XX 00000
Xxxx X. Read [ ] [ ]
Xxxxx X. Xxxxx [ ] [ ]
Xxxxx Xxxxxxx [ ] [ ]
Xxxxx Xxxxx [ ] [ ]
Xxxx X. Xxxxx [ ] [ ]
Xxxxxx Xxxx [ ] [ ]
Xxxxx X. Xxxxxxxx [ ] [ ]
Xxxxxx Xxxxxxx [ ] [ ]
Xxxxxx X. Xxxxxxxxx [ ] [ ]
Xxxxxx X. Xxxxxxxx [ ] [ ]
Xxxxxxx Xxxxx [ ] [ ]
Xxxxxxx Xxxxxx [ ] [ ]
Xxxxx Xxxxxxxx [ ] [ ]
Xxxxxx Xxxxxxx [ ] [ ]
-----------
Total 6,416,163
===========
35
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC............................................... [ ]
Xxxxxx X. Xxxxx & Co. Incorporated........................................... [ ]
X.X. Xxxxxx Securities Inc. ................................................. [ ]
Xxxxxx Brothers Inc. ........................................................ [ ]
---------------
Total............................................. 7,916,163
===============
SCHEDULE C
SUBSIDIARIES OF
COMMERCIAL VEHICLE GROUP, INC.
SCHEDULE D-1
CUSTODIAL SELLING STOCKHOLDERS
Xxxxx Capital Partners III X.X.
Xxxxx Capital Partners II L.P.
BCP III Affiliates Fund L.P.
BCP III Special Affiliates L.P.
BCP II Affiliates Fund L.P.
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx Xxxxx
Xxxx X. Read
Xxxxx Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxx Xxxxxx
S.A. Xxxxxxx
Xxxxxxxx Street Partners II
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxx-Xxxxxx X. Xxxxxxx Trust
Xxxxxxx Xxxxxxxxxxx
Hidden Creek Industries
SCHEDULE D-2
SELLING STOCKHOLDERS COVERED BY OPINION OF XXXXXXXX & XXXXX LLP
S.A. Xxxxxxx
Xxxxxxxx Street Partners II
Xxxx-Xxxxxx X. Xxxxxxx Trust
Xxxxxxx Xxxxxxxxxxx
Xxxx X. Read
Xxxxx X. Xxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxx X. Xxxxx
Xxxxxx Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxx
SCHEDULE D-3
SELLING STOCKHOLDERS COVERED BY OPINION OF XXXX XXXXXXX LLP
Onex American Holdings II LLC
Xxxxxxx Executive Investco LLC
CVS Executive Investco LLC
Onex DHC LLC
Trim Systems Executive Investco LLC
Trim Systems Executive Investco II LLC
Xxxxxxx Partners LP
1170821 Ontario Inc.
1170809 Ontario Inc.
1170812 Ontario Inc.
Kyzalea Company
1170819 Ontario Inc.
1170698 Ontario Inc.
1301449 Ontario Inc.
1352536 Ontario Inc.
1376653 Ontario Inc.
1352537 Ontario Inc.
Xxx Xxxxxxxxx
3-G Investments Limited
Xxxxx Xxxxx
Xxxxx Xxxx
J.W.E. Xxxxx
Xxxxxx Xxxxxxxx
1299039 Ontario Inc.
2668921 Manitoba Ltd
Onex Advisor III LLC
CVS Partners, LP
3062601 Nova Scotia Company
AMON Canadian Investments Ltd.
MHON Canadian Investments Ltd.
Hidden Creek Industries
Xxxxx Capital Partners III X.X.
Xxxxx Capital Partners II L.P.
BCP III Affiliates Fund L.P.
BCP III Special Affiliates L.P.
BCP II Affiliates Fund L.P.
EXHIBIT A
OPINION OF XXXXXXXX & XXXXX LLP
[SEE ATTACHED]
EXHIBIT B
OPINION OF XXXXXXXX & XXXXX LLP
[SEE ATTACHED]
EXHIBIT C
OPINION OF XXXX XXXXXXX LLP
[SEE ATTACHED]
EXHIBIT E
CERTIFICATE OF CHIEF FINANCIAL OFFICER
[ ], 2005
Credit Suisse First Boston LLC,
Xxxxxx X. Xxxxx & Co. Incorporated,
As representatives of the several underwriters
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
In 2002, Trim Systems Operating Corp., Commercial Vehicle Systems
Holdings, Inc. and CVS Holdings Ltd. (the "Constituent Entities") dismissed
their independent auditors, Xxxxxx Xxxxxxxx LLP ("Xxxxxxxx") and engaged the
services of Deloitte & Touche LLP ("Deloitte") as their new independent auditors
for the fiscal year ending December 31, 2002. The boards of directors and audit
committees of each of the Constituent Entities authorized the dismissal of
Xxxxxxxx and the engagement of Deloitte. Given this change in independent public
accountants, you have asked me to provide you with certain information as of the
date hereof in connection with the offering (the "Offering") of Common Stock,
par value $0.01 per share (the "Securities") of the Company. To that end, in my
capacity as Chief Financial Officer of the Company, I do hereby certify to the
best of my knowledge based upon a review of the financial records and schedules
of the Company made by me or members of my staff that:
Nothing has come to my attention that would cause me to believe that
the consolidated balance sheets of the Company as of December 31, 2000 and the
related financial data included in the registration statement (No. 333-125626)
on Form S-1 filed by the Company under the Securities Act of 1933 (the
"Registration Statement") do not fairly represent the financial position of the
Company and its subsidiaries in all material respects in conformity with
accounting principles generally accepted in the United States.
I, or members of my staff, have read the items marked on the attached
copies of selected pages of the Registration Statement and have performed the
following procedures, which were applied as indicated by the letters set forth
below:
A. Agreed to or derived from the Constituent Entities'
separate financial statements (which were individually audited by Xxxxxxxx)
which have been combined as a result of their merger, after giving effect to the
required generally accepted accounting principles adjustments as a result of the
merger of the Constituent Entities.
B. Proved the arithmetic accuracy based on amounts in or
derived from the Constituent Entities' separate financial statements (which were
individually audited by Xxxxxxxx) which have been combined as a result of their
merger, after giving effect to the required generally accepted accounting
principles adjustments as a result of the merger of the Constituent Entities.
This letter is being provided solely for the information of Credit
Suisse First Boston LLC and Xxxxxx X. Xxxxx & Co. Incorporated, as
representatives of the underwriters, to assist the underwriters in conducting
and documenting their investigation of the affairs of the Company in connection
with the Offering, and this letter is not to be used, circulated, quoted or
otherwise referred to for any purpose.
To evidence my certification as an officer of the Company of the
foregoing information, I have set my hand to this letter on the date first
written above.
Very truly yours,
COMMERCIAL VEHICLE GROUP, INC.,
By
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
EXHIBIT F
FORM OF LOCK-UP AGREEMENT
June , 2005
Commercial Vehicle Group, Inc.
0000 Xxxx Xxxxxx Xxx
Xxx Xxxxxx, Xxxx 00000
Credit Suisse First Boston LLC
Xxxxxx X. Xxxxx & Co. Incorporated
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
(collectively, the "UNDERWRITERS")
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the
Underwriting
Agreement (the "
UNDERWRITING AGREEMENT"), pursuant to which an offering (the
"OFFERING") will be made of the common stock, par value $0.01 per share (the
"SECURITIES") of
Commercial Vehicle Group, Inc., and any successor (by merger or
otherwise) thereto (the "COMPANY"), the undersigned hereby agrees that during
the period specified in the following paragraph (the "LOCK-UP PERIOD"), the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston LLC ("CSFB") and Xxxxxx X. Xxxxx & Co.
Incorporated ("BAIRD"). In addition, the undersigned agrees that, without the
prior written consent of CSFB and Baird, it will not, during the Lock-Up Period,
make any demand for, or exercise any right with respect to, the registration of
any Securities or any security convertible into or exercisable or exchangeable
for the Securities except in connection with the Offering.
The initial Lock-Up Period will commence on the date of this Lock-Up
Agreement and continue for 90 days after the public offering date set forth on
the final prospectus used to sell the Securities (the "Public Offering Date")
pursuant to the
Underwriting Agreement; provided, however, that if (1) during
the last 17 days of the initial Lock-Up Period, the Company releases earnings
results or material news or a material event relating to the Company occurs
(and, in the case of material news or material event, CSFB and Xxxxx give the
notice thereof to the Chief Financial Officer of the Company) or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the
last day of the initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on the date
of release of the earnings results (which in the case of clause (2) must occur
prior to the expiration of such 16-day period) or the occurrence of the material
news or material event, as applicable, unless CSFB and Xxxxx waive, in writing,
such extension.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market and any Securities sold in the Offering
pursuant to the
Underwriting Agreement, will not be subject to this Agreement. A
transfer of Securities (or other transaction of the types restricted in the
first paragraph of this letter) to a family member, trust, affiliate of the
undersigned, or a director, officer or employee of the undersigned or of an
affiliate of the undersigned may be made, provided the transferee agrees to be
bound in writing by the terms of this Agreement. In addition, the undersigned
may transfer Securities or securities convertible into or exchangeable or
exercisable for Securities pursuant to a sale of 100% of the outstanding
Securities (including, without limitation, in connection with a tender offer for
such Securities or by way of merger of the Company with another person) to a
third party or group of third parties that are not affiliates of the Company
(and may make offers or enter into contracts with respect to such a transfer),
provided that unless the third party or group is acquiring 100% of the
outstanding Securities of the Company in a single transaction or concurrent
transactions, the third party or group of third parties agrees in writing to be
bound by the restrictions set forth herein until such time as such third party
or group of third parties has acquired 100% of the outstanding Securities of the
Company.
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
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void (a) if the
Underwriting Agreement or the
obligation of the Underwriters to purchase Securities thereunder is terminated,
(b) if the registration statement filed with the SEC in respect of the Offering
is withdrawn, (c) if the closing of the Offering pursuant to the
Underwriting
Agreement shall not have occurred on or before September 30, 2005 or (d) if,
prior to the undersigned's execution and delivery of the
Underwriting Agreement,
the Company or Onex DHC LLC notifies CSFB and Xxxxx in writing at the address
set forth above (Attention: Transactions Advisory Group) that it does not then
intend to pursue an offering of the Securities through CSFB and Xxxxx as
underwriters. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of
New York.
Very truly yours,
By:
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Name:
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