CHAMPION ENTERPRISES, INC. UNDERWRITING AGREEMENT
Exhibit 1.1
$160,000,000
CHAMPION ENTERPRISES, INC.
2.75% Convertible Senior Notes due 2037
October 29, 2007
Credit Suisse Securities (USA) LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000
Dear Sirs:
1. Introductory. Champion Enterprises, Inc., a Michigan corporation (“Company”), agrees with
Credit Suisse Securities (USA) LLC (“Credit Suisse” or the “Underwriter”) to issue and sell to the
Underwriter $160,000,000 principal amount (“Firm Securities”) of its 2.75% Convertible Senior Notes
due 2037 (“Securities”) and also agrees to issue and sell to the Underwriter, at the option of the
Underwriter, an aggregate of not more than $20,000,000 additional principal amount (“Optional
Securities”) of its Securities as set forth below, all to be issued under an indenture, dated as of
November 2, 2007 and as supplemented through the First Closing Date (“Indenture”), between the
Company and Xxxxx Fargo Bank, N.A., as Trustee. The Firm Securities and the Optional Securities are
herein collectively called the “Offered Securities.”
2. Representations and Warranties of the Company. The Company represents and warrants to,
and agrees with, the Underwriter that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No.
333-146980), including a related prospectus or prospectuses, covering the registration of
the Offered Securities under the Act, which has become effective. “Registration Statement”
at any particular time means such registration statement in the form then filed with the
Commission, including any amendment thereto, any document incorporated by reference therein
and all 430B Information and all 430C Information with respect to such registration
statement, that in any case has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 8:00 pm (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Offered Securities
means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule A to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Trust Indenture Act, the Rules and
Regulations, the auditing principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company
Accounting Oversight Board and the rules of the New York Stock Exchange (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information
with respect to the Registration Statement. For purposes of the foregoing definition, 430B
Information shall be considered to be included in the Statutory Prospectus only as of the
actual time that form of prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means the Trust Indenture Act of 1939.
“Underlying Shares” shall mean shares of common stock into which the Securities are
convertible.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) at the Effective
Time relating to the Offered Securities and (D) on the Closing Date, the Registration
Statement conformed and will conform in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations and did not and will 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 and (ii) (A) on
its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C)
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on the Closing Date, the Final Prospectus will conform in all respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and will 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. The preceding sentence
does not apply to statements in or omissions from any such document based upon written
information furnished to the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information is that described as such in
Section 8(b) hereof.
(c) Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer
Status. (A) At the time of initial filing of the Registration Statement, (B) at
the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Offered Securities in reliance on the exemption of
Rule 163, the Company was a “well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The
Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, that initially became effective within three years of the date of this
Agreement. If immediately prior to the Renewal Deadline (as hereinafter defined),
any of the Offered Securities remain unsold by the Underwriter, the Company will
prior to the Renewal Deadline file, if it has not already done so and is eligible
to do so, a new automatic shelf registration statement relating to the Offered
Securities, in a form satisfactory to the Underwriter. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company will prior
to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Offered Securities, in a form satisfactory
to the Underwriter, and will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Deadline. The
Company will take all other action necessary or appropriate to permit the public
offering and sale of the Offered Securities to continue as contemplated in the
expired registration statement relating to the Offered Securities. References
herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may
be. “Renewal Deadline” means the third anniversary of the initial effective time
of the Registration Statement.
(iii) Eligibility to Use Automatic Shelf Registration Form. The Company has
not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to
the use of the automatic shelf registration statement form. If at any time when
Offered Securities remain unsold by the Underwriter the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible
to use the automatic shelf registration statement form, the Company will (i)
promptly notify the Underwriter, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Offered Securities, in
a form satisfactory to the Underwriter, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared effective as soon
as practicable, and (iv) promptly notify the Underwriter of such effectiveness.
The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Offered Securities to continue as contemplated in
the Registration Statement that was the subject of the Rule 401(g)(2) notice or for
which the Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
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(iv) Filing Fees. The Company has paid or shall pay the required Commission
filing fees relating to the Offered Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date
of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405, including (x) the Company or any other subsidiary in the preceding three years
not having been convicted of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in Rule 405 and (y) the Company in
the preceding three years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration statement be the subject of
a proceeding under Section 8 of the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the Securities, all as described
in Rule 405.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time nor the
preliminary prospectus supplement, dated October 29, 2007, including the base prospectus,
dated October 29, 2007, (which is the most recent Statutory Prospectus distributed to
investors generally), and the other information, if any, stated in Schedule A to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, it being understood and agreed
that the only such information furnished by the Underwriter consists of the information
described as such in Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
Credit Suisse as described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information then contained
in the Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which such Issuer Free Writing
Prospectus, if republished immediately following such event or development, would include
an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (i) the Company has promptly notified or will
promptly notify Credit Suisse and (ii) the Company has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(g) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Michigan, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package; 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 so qualify would not,
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individually or in the aggregate, result in a material adverse effect on the condition
(financial or otherwise), results of operations, business, properties or prospects of the
Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(h) Subsidiaries. Each subsidiary of the Company has been duly incorporated and is
existing and in good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; 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 so qualify would not, individually
or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned, subject to the Amended and Restated
Credit Agreement, dated as of April 7, 2006, as amended, among Champion Home Builders Co.,
the various financial institutions from time to time parties thereto, Credit Suisse, Cayman
Islands Branch, as administrative agent, and certain other persons party thereto, free from
liens, encumbrances and defects.
(i) Execution and Delivery of Indenture. The Indenture has been duly authorized and
has been duly qualified under the Trust Indenture Act; the Offered Securities have been
duly authorized and, when the Offered Securities are delivered and paid for pursuant to
this Agreement on each Closing Date, the Indenture will have been duly executed and
delivered, and assuming due authorization, valid execution and delivery thereof by the
Trustee, the Indenture and such Offered Securities will have been duly executed,
authenticated, issued and delivered, will conform to the information in the General
Disclosure Package and to the description of such Offered Securities contained in the Final
Prospectus and the Indenture and such Offered Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles.
(j) Offered Securities. When the Offered Securities are delivered and paid for
pursuant to this Agreement on each Closing Date, such Offered Securities will be
convertible into the Underlying Shares of the Company in accordance with the terms of the
Indenture; the Underlying Shares initially issuable upon conversion of such Offered
Securities have been duly authorized and reserved for issuance upon such conversion,
conform to the information in the General Disclosure Package and to the description of such
Underlying Shares contained in the Final Prospectus; the authorized equity capitalization
of the Company is as set forth in the General Disclosure Package; all outstanding shares of
capital stock of the Company are, and when issued upon conversion the Underlying Shares
will be validly issued, fully paid and nonassessable; the stockholders of the Company have
no preemptive rights with respect to the Offered Securities or the Underlying Shares, and
none of the outstanding shares of capital stock of the Company have been issued in
violation of any preemptive or similar rights of any security holder.
(k) No Finder’s Fee. Except as disclosed in the General Disclosure Package, 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 the Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with this offering.
(l) Registration Rights. Except as disclosed in the General Disclosure Package, 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
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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 (collectively, “registration rights”), and any
person to whom the Company has granted registration rights has agreed not to exercise such
rights until after the expiration of the Lock-Up Period referred to in Section 5 hereof.
(m) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement or the Indenture in connection with the offering, issuance and sale of the
Offered Securities and Underlying Shares by the Company, except such as have been obtained,
or made and such as may be required under state securities laws.
(n) Title to Property. Except as disclosed in the General Disclosure Package, 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, charges,
encumbrances and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them and, except as disclosed in the
General Disclosure Package, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no terms or provisions that would
materially interfere with the use made or to be made thereof by them.
(o) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Indenture and this Agreement, and the issuance and sale of
the Offered Securities and Underlying Shares and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and provisions of, or
constitute a default or a Debt Repayment Triggering Event (as defined below) under, or
result in the imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, the charter or by-laws of the Company
or any of its subsidiaries, any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their properties, or any agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the Company or any of its
subsidiaries is subject; a “Debt Repayment Triggering Event” means any event or condition
that gives, or with the giving of notice or lapse of time would give, the holder of any
note, debenture, or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(p) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws or in default (or with
the giving of notice or lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any of them is a party or by which any of
them is bound or to which any of the properties of any of them is subject, except such
defaults that would not, individually or in the aggregate, result in a Material Adverse
Effect.
(q) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(r) Possession of Licenses and Permits. The Company and its subsidiaries possess, and
are in compliance with the terms of, all adequate certificates, authorizations, franchises,
licenses and permits (“Licenses”) necessary or material to the conduct of the business now
conducted or proposed in the General Disclosure Package to be conducted by them and have
not received any
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notice of proceedings relating to the revocation or modification of any Licenses that,
if determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(s) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent that could
have a Material Adverse Effect.
(t) Possession of Intellectual Property. 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 property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package,
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.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Certain United States Federal Income Tax
Considerations” and “Description of the Notes,” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or proceedings and present the
information required to be shown.
(w) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action that is designed to or that has constituted or that would reasonably be expected to
cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference in a Registration Statement, a
Statutory Prospectus or the General Disclosure Package are based on or derived from sources
that the Company believes to be reliable and accurate.
(y) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth
in the General Disclosure Package, the Company, its subsidiaries and the Company’s Board of
Directors (the “Board”) are in compliance with Xxxxxxxx-Xxxxx and all applicable rules of
the Exchange Act. The Company maintains a system of internal controls, including, but not
limited to, disclosure controls and procedures, internal controls over accounting matters
and financial reporting, an internal audit function and legal and regulatory compliance
controls (collectively, “Internal Controls”) that comply with the Securities Laws and are
sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general
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or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. Generally Accepted Accounting
Principles and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Internal
Controls are, or upon consummation of the offering of the Offered Securities will be,
overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with
Exchange Rules. The Company has not publicly disclosed or reported to the Audit Committee
or the Board, and within the next 90 days the Company does not reasonably expect
to publicly disclose or report to the Audit Committee or the Board, a significant
deficiency, material weakness, change in Internal Controls or fraud involving management or
other employees who have a significant role in Internal Controls (each, an “Internal
Control Event”), any violation of, or failure to comply with, the Securities Laws, or any
matter which, if determined adversely, would have a Material Adverse Effect.
(z) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) 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 the Indenture or this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings (including any inquiries or investigations by any court or
governmental agency or body, domestic or foreign) are threatened or, to the Company’s
knowledge, contemplated.
(aa) Financial Statements. The financial statements included in the Registration
Statement and the General Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; and the schedules included in the Registration
Statement present fairly the information required to be stated therein.
(bb) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole that is material and adverse, (ii) except as disclosed in or
contemplated by the General Disclosure Package, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital stock and
(iii) except as disclosed in or contemplated by the General Disclosure Package, there has
been no material adverse change in the capital stock, short-term indebtedness, long-term
indebtedness, net current assets or net assets of the Company and its subsidiaries.
(cc) Investment Company Act. 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 General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940 (the “Investment Company Act”).
(dd) Ratings. No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company that
it is considering imposing) any condition (financial or otherwise) on the Company’s
retaining any
8
rating assigned to the Company or any securities of the Company or (ii) has indicated
to the Company that it is considering any of the actions described in Section 7(d)(ii)
hereof.
(ee) Tax. The Company and its subsidiaries have filed all federal, state, local and
non-U.S. tax returns that are required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not have a Material Adverse
Effect); and, except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines or penalties currently
being contested in good faith or as would not, individually or in the aggregate, have a
Material Adverse Effect.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of 97.25% of the principal amount thereof plus accrued interest from November 2,
2007 to the First Closing Date (as hereinafter defined), the $160,000,000 of Firm Securities.
The Company will deliver the Firm Securities to or as instructed by the Underwriter in a form
reasonably acceptable to the Underwriter against payment of the purchase price by the Underwriter
in Federal (same day) funds by wire transfer to an account at a bank acceptable to Credit Suisse
drawn to the order of Champion Enterprises, Inc. at the office of Xxxxx Xxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York time, on November 2, 2007, or
at such other time not later than seven full business days thereafter as the Underwriter and the
Company determine, such time being herein referred to as the “First Closing Date”. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, 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 Firm
Securities so to be delivered or evidence of their issuance will be made available for checking at
the above office of Xxxxx Xxxx & Xxxxxxxx at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Underwriter given to the Company from time to time
not more than 13 days subsequent to the date of the Final Prospectus, the Underwriter may purchase
all or less than all of the Optional Securities at the purchase price per principal amount of
Securities (including any accrued interest thereon to the related Optional Closing Date) to be paid
for the Firm Securities; provided that any such Optional Closing Date will be no later than 13 days
from and including the First Closing Date. The Company agrees to sell to the Underwriter the
principal amount of Optional Securities specified in such notice and the Underwriter agrees to
purchase such Optional Securities. Such Optional Securities shall be purchased for the account of
the Underwriter and may be purchased by the Underwriter only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are,
sold and delivered. The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Underwriter to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Underwriter but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to or as instructed by the Underwriter in
a form reasonably acceptable to the Underwriter against payment of the purchase price therefor in
Federal (same day) funds by wire transfer to an account at a bank acceptable to the Underwriter
drawn to the order of Champion Enterprises, Inc., at the above office of Xxxxx
Xxxx & Xxxxxxxx. The Optional Securities being purchased on each Optional
9
Closing Date or evidence of their issuance will be made available for checking at the above
office of Xxxxx Xxxx & Xxxxxxxx at a reasonable time in advance of such Optional Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter proposes to offer the
Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company agrees with the Underwriter that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule
424(b)(2) (or, if applicable and consented to by the Underwriter, subparagraph (5)) not
later than the second business day following the earlier of the date it is first used or
the execution and delivery of this Agreement. The Company has complied and will comply
with Rule 433.
(b) Filing of Amendments; Response to Commission Requests. Prior to the completion of
the offering of the Securities, the Company will promptly advise the Underwriter of any
proposal to amend or supplement the Registration Statement or any Statutory Prospectus at
any time and will offer the Underwriter a reasonable opportunity to comment on any such
amendment or supplement; and the Company will also advise the Underwriter promptly of (i)
the filing of any such amendment or supplement, (ii) any request by the Commission or its
staff for any amendment to the Registration Statement, for any supplement to any Statutory
Prospectus or for any additional information, (iii) the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or the threatening of
any proceeding for that purpose, and (iv) the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered Securities in any
jurisdiction or the institution or threatening of any proceedings for such purpose. The
Company will use its commercially reasonable efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by the Underwriter or any dealer, any event occurs
as a result of which the Final 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 Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Underwriter of such event and will promptly prepare and file with the Commission and
furnish, at its own expense, to the Underwriter and the dealers and any other dealers upon
request of the Underwriter, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the Underwriter’s
consent to, nor the Underwriter’s delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the date of this
Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Underwriter copies of
the Registration Statement, including all exhibits, any Statutory Prospectus, the Final
Prospectus and all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriter reasonably requests. The Company will
pay the expenses of printing and distributing to the Underwriter all such documents.
10
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Underwriter designates and will continue such
qualifications in effect so long as required for the distribution, provided that the
Company shall not be required to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not otherwise be required to
so qualify, (ii) file any general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Reporting Requirements. During the period of 10 years hereafter, the Company will
furnish to the Underwriter, 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 Underwriter (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
the Underwriter may reasonably request. However, so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”), it is not required to furnish such reports or statements to the
Underwriter.
(h) Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including but not limited to any
filing fees and other expenses (including fees and disbursements of counsel to the
Underwriter) incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Underwriter designates and the preparation and
printing of memoranda relating thereto, any fees charged by investment rating agencies for
the rating of the Offered Securities, costs and expenses related to the review by the
Financial Industry Regulatory Authority of the Offered Securities (including filing fees
and the fees and expenses of counsel for the Underwriter relating to such review), costs
and expenses relating to investor presentations or any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s officers and employees and any other expenses of the Company
including the chartering of airplanes, fees and expenses incident to listing the Offered
Securities on the New York Stock Exchange and other national and foreign exchanges, fees
and expenses in connection with the registration of the Offered Securities under the
Exchange Act, and expenses incurred in distributing preliminary prospectuses and the Final
Prospectus (including any amendments and supplements thereto) to the Underwriter and for
expenses incurred for preparing, printing and distributing any Issuer Free Writing
Prospectuses to investors or prospective investors.
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Offered Securities
hereunder to repay any outstanding debt owed to any affiliate of the Underwriter.
(j) Absence of Manipulation. The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause
or result in, stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities. 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 United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more than one year
from the date of issue, or
11
publicly disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Underwriter for a period beginning on the
date hereof and ending 60 days after the last Closing Date.
(l) Restriction on Sale of Securities. For the period specified below (the “Lock-Up
Period”), the Company will not, directly or indirectly, take any of the following actions
with respect to its Securities, the Underlying Shares or any securities convertible into or
exchangeable or exercisable for any of its Securities or Underlying Shares (“Lock-Up
Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of
Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase (except
repurchases to satisfy tax related obligations) or grant any option, right or warrant to
purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that
transfers, in whole or in part, the economic consequences of ownership of Lock-Up
Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a
call equivalent position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
without the prior written consent of the Underwriter, except issuances of Lock-Up
Securities pursuant to the conversion or exchange of convertible or exchangeable securities
or the exercise of warrants or options, in each case outstanding on the date hereof, grants
of employee or director stock options pursuant to the terms of a plan in effect on the date
hereof, issuances of Lock-Up Securities pursuant to the exercise of such options or
issuances of Lock-Up Securities pursuant to the Company’s dividend reinvestment plan. The
initial Lock-Up Period will commence on the date hereof and continue for 60 days after the
date hereof or such earlier date that the Underwriter consents 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 materials news or material event, as applicable, unless the
Underwriter waives, in writing, such extension. The Company will provide the Underwriter
with notice of any announcement described in clause (2) of the preceding sentence that
gives rise to an extension of the Lock-Up Period.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company
represents and agrees that, unless it obtains the prior consent of Credit Suisse, and the
Underwriter represents and agrees that, unless it obtains the prior consent of the Company,
it has not made and will not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission,
except for any term sheet containing a description of the terms of the Offered Securities
or an offering either that does not reflect the final terms or that is included in the
final term sheet contemplated in Section 6(b) hereof. Any such free writing prospectus
consented to by the Company and Credit Suisse is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rules 164
and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission
filings where required, legending and record keeping.
(b) Term Sheets. The Company will prepare a final term sheet relating to the Offered
Securities, containing only information that describes the final terms of the Offered
Securities and otherwise in a form consented to by Credit Suisse, and will file such final
term sheet within the period required by Rule 433(d)(5)(ii) following the date such final
terms have been established for all classes of the offering of the Offered Securities. Any
such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing
Prospectus for purposes of this Agreement. The
12
Company also consents to the use by the Underwriter of a free writing prospectus that
contains only (i)(x) information describing the preliminary terms of the Offered Securities
or its offering or (y) information that describes the final terms of the Offered Securities
or its offering and that is included in the final term sheet of the Company contemplated in
the first sentence of this subsection or (ii) other information that is not “issuer
information,” as defined in Rule 433, it being understood that any such free writing
prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing
Prospectus for purposes of this Agreement.
7. Conditions of the Obligations of the Underwriter. The obligations of the Underwriter 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 of the Company herein (as though made on such Closing Date), to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Underwriter shall have received letters, dated,
respectively, the date hereof and each Closing Date, of Ernst & Young LLP confirming that
they are a registered public accounting firm and independent public accountants within the
meaning of the Securities Laws and substantially in the form of Schedule B hereto (except
that, in any letter dated a Closing Date, the specified date referred to in Schedule B
hereto shall be a date no more than three days prior to such Closing Date).
(b) Accountants’ Comfort Letter. The Underwriter shall have received letters, dated,
respectively, the date hereof and each Closing Date, of PricewaterhouseCoopers LLP
confirming that they are a registered public accounting firm and independent public
accountants within the meaning of the Securities Laws and substantially in the form of
Schedule C hereto (except that, in any letter dated a Closing Date, the specified date
referred to in Schedule C hereto shall be a date no more than three days prior to such
Closing Date).
(c) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or the Underwriter, shall be contemplated by the
Commission.
(d) No Material Adverse Change. 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 otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as
a whole which, in the judgment of the Underwriter, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or
any public announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls the effect of which is
such as to make it, in the judgment of the Underwriter, impractical to market or to enforce
contracts for the sale of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any setting of minimum
or maximum prices for trading on such exchange; (v) or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by any U.S. federal or New
13
York authorities; (vii) any major disruption of settlements of securities, payment, or
clearance services in the United States or any other country where such securities are
listed 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 the Underwriter, the effect of
any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as
to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.
(e) Opinions of Counsel for Company. The Underwriter shall have received opinions,
dated such Closing Date, of Xxxxxx Xxxxxxx PLLC, counsel for the Company, substantially in
the form of Schedule D hereto and of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Company, substantially in the form of Schedule E hereto.
(f) Opinion of Counsel for the Underwriter. The Underwriter shall have received from
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriter, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Underwriter may require, and the Company
shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, Xxxxx Xxxx & Xxxxxxxx
may include appropriate assumptions as to the incorporation of the Company and all other
matters governed by Michigan law.
(g) Officers’ Certificate. The Underwriter shall have received a certificate, dated
such Closing Date, of an executive officer of the Company and a principal financial or
accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; and, subsequent to the date of the most
recent financial statements in the General Disclosure Package, there has been no material
adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company and its subsidiaries taken as a whole except as set
forth in the General Disclosure Package or as described in such certificate.
The Company will furnish the Underwriter with such conformed copies of such opinions, certificates,
letters and documents as the Underwriter reasonably requests. Credit Suisse may in its sole
discretion waive compliance with any conditions to the obligations of the Underwriter hereunder,
whether in respect of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) Indemnification of the Underwriter. The Company
will indemnify and hold harmless the Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”),
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation 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 part of the Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether
14
threatened or commenced, and in connection with the enforcement of this provision with respect
to any of the above as such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of the information described as
such in subsection (b) below.
(b) Indemnification of Company. The Underwriter will indemnify and hold harmless the
Company, each of its directors and each of its officers who signs a Registration Statement 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 (each, an “Underwriter Indemnified Party”), against any losses, claims, damages
or liabilities to which the Underwriter Indemnified Party may become subject, under the Act, the
Exchange Act, other Federal or state statutory law or regulation 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 part of
the Registration Statement at any time, any Statutory Prospectus as of any time, the Final
Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or the alleged omission of 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 the Underwriter through
the Underwriter specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Underwriter Indemnified Party in connection with investigating or
defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not the Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by the Underwriter consists of the following information
in the Final Prospectus furnished on behalf of the Underwriter: the concession figures appearing
in the fourth paragraph under the caption “Underwriting” and the information contained in the
“fourteenth” and “fifteenth” paragraphs under the caption “Underwriting.”
(c) Actions against Parties; Notification. 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 the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) 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) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) 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.
15
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other from the offering of the Offered Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Underwriter on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the Underwriter. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriter 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 (d) 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 (d).
Notwithstanding the provisions of this subsection (d), the Underwriter shall not 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 the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Company
and the Underwriter agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section 8(d).
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the Underwriter 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 the
Underwriter, 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 the
purchase of the Offered Securities by the Underwriter is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 9 hereof, the Company will
reimburse the Underwriter for all out-of-pocket accountable expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the offering of the Offered
Securities, and the respective obligations of the Company and the Underwriter pursuant to Section 8
hereof shall remain in effect. In addition, 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.
10. Notices. All communications hereunder will be in writing and, if sent to the Underwriter,
will be mailed, delivered or telegraphed and confirmed to the Underwriter at Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 0000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxxx 00000, Attention: Xxx X. Xxxxxxxxx; provided, however, that notice to the Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to the Underwriter.
16
11. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
12. 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.
13. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Underwriter has been retained solely to act as underwriter in
connection with the sale of Offered Securities and that no fiduciary, advisory or agency
relationship between the Company and the Underwriter has been created in respect of any of the
transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the
Underwriter has advised or is advising the Company on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriter and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Underwriter and
its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and that the Underwriter has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may
have against the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty and
agrees that the Underwriter shall have no liability (whether direct or indirect) to the Company 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, including stockholders, employees or creditors of the Company.
14. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
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. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
17
If the foregoing is in accordance with the Underwriter’s understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the Underwriter in accordance with its terms.
| Very truly yours, Champion Enterprises, Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
|
| Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ Jared Felt | |||
| Name: | Jared Felt | |||
| Title: | Managing Director | |||
