William Blair & Company, L.L.C. Jefferies & Company, Inc. KeyBanc Capital Markets Inc. Davenport & Company LLC c/o William Blair & Company, L.L.C. 222 West Adams Street Chicago, Illinois 60606 Ladies and Gentlemen:
Exhibit 1.1
May 23, 2007
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxx & Company, Inc.
KeyBanc Capital Markets Inc.
Xxxxxxxxx & Company LLC
Xxxxxxxxx & Company, Inc.
KeyBanc Capital Markets Inc.
Xxxxxxxxx & Company LLC
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
A.M. Castle & Co. (“Company”) proposes to issue and sell 2,347,826 shares of its authorized
but unissued common stock, $0.01 par value per share (“Common Stock”), and certain stockholders of
the Company (collectively referred to as the “Selling Stockholders” and named in Schedule II)
propose to sell 2,000,000 shares of the Company’s issued and outstanding Common Stock to the
several underwriters named in Schedule I as it may be amended by the Pricing Agreement hereinafter
defined (“Underwriters”), who are acting severally and not jointly. Collectively, such total of
4,347,826 shares of Common Stock proposed to be sold by the Company and the Selling Stockholders is
hereinafter referred to as the “Firm Shares.” In addition, the Company proposes to grant to the
Underwriters an option to purchase up to 652,174 additional shares of Common Stock (“Option
Shares”) as provided in Section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Option Shares, are hereinafter collectively referred to as the “Shares.”
You have advised the Company and the Selling Stockholders that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon as you deem advisable
after the registration statement hereinafter referred to becomes effective, if it has not yet
become effective, and the Pricing Agreement, hereinafter defined, has been executed and delivered.
Prior to the purchase and public offering of the Shares by the several Underwriters, the
Company, the Selling Stockholders and Xxxxxxx Xxxxx & Company, L.L.C. (the “Representative”),
acting on behalf of the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (“Pricing Agreement”). The Pricing Agreement may take the form of an
exchange of any standard form of written telecommunication between the Company, the Selling
Stockholders and the Representative and shall specify such applicable information as is indicated
in Exhibit A hereto. The offering of the Shares will be governed by this underwriting agreement
(this “Agreement”), as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Company and each of the Selling Stockholders hereby confirm their agreements with the
Underwriters as follows:
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-142337) (the “Initial
Registration Statement”) in respect of the Shares has been filed with the Securities and
Exchange Commission (the “Commission”); such Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to the Underwriters,
excluding exhibits thereto, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the offering (a “Rule
462(b) Registration Statement”), filed pursuant to Rule 462(b) under the U.S. Securities Act
of 1933, as amended (the “Act”), which became effective upon filing; and no stop order
suspending the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or any part thereof or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or, to the knowledge of
the Company, threatened by the Commission (the base prospectus filed as part of the Initial
Registration Statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement relating to the Shares, is hereinafter
called the “Basic Prospectus”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of
the Initial Registration Statement and the Rule 462(b) Registration Statement, if any,
including the information incorporated by reference therein, any prospectus supplement
relating to the Shares filed with the Commission and deemed by virtue of Rule 430B under the
Act to be part of the Initial Registration Statement, each as amended at the time such part
of the Initial Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in Section 1(a)(iii)
hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus
relating to the Shares filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein, as of the date of such prospectus, as the case may be; any reference to any
amendment or supplement to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the Shares
filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated
therein, in each case after the date of the Basic
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Prospectus, such Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as
the case may be; any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is
hereinafter called an “Issuer Free Writing Prospectus”;
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the Company (x) by
an Underwriter through Xxxxxxx Xxxxx & Company, L.L.C. expressly for use therein or (y) by a
Selling Stockholder expressly for use in the information provided under the caption “Selling
Stockholders” in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus;
(iii) For the purposes of this Agreement, the “Applicable Time” is 6:45 pm Eastern time
on the date of this Agreement; the Pricing Prospectus as supplemented by those Issuer Free
Writing Prospectuses and other documents listed in Schedule III hereto, taken together
(collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include
any untrue statement of a material fact or omit 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; and each Issuer Free Writing Prospectus listed on Schedule III(a)
hereto does not conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in writing to the
Company (x) by an Underwriter through Xxxxxxx Xxxxx & Company, L.L.C. expressly for use
therein or (y) by a Selling Stockholder expressly for use in the information provided under
the caption “Selling Stockholders” therein;
(iv) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they were filed with the Commission conformed in all material respects to
the requirements of the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Company (x) by an Underwriter through Xxxxxxx Xxxxx & Company, L.L.C. expressly for
use therein or (y) by a Selling
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Stockholder expressly for use in the information provided under the caption “Selling
Stockholders” in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Company (x) by an Underwriter through Xxxxxxx Xxxxx & Company, L.L.C. expressly for use
therein or (y) by a Selling Stockholder expressly for use in the information provided under
the caption “Selling Stockholders” in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus;
(v) The Registration Statement conforms, and the Pricing Prospectus and the Prospectus
and any further amendments or supplements to the Registration Statement, the Pricing
Prospectus and/or the Prospectus will conform, in all material respects, to the requirements
of the Act and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the Registration Statement and
as of the applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Company (x) by an Underwriter through Xxxxxxx Xxxxx & Company, L.L.C. expressly for
use therein or (y) by a Selling Stockholder expressly for use in the information provided
under the caption “Selling Stockholders” in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus;
(vi) Any Preliminary Prospectus at the date thereof did not, and the Prospectus at the
date thereof, does or did not, and any further amendment or supplement thereto, as of the
date of any such amendment or supplement, will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein not misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company (x) by an Underwriter through Xxxxxxx Xxxxx
& Company, L.L.C. expressly for use therein or (y) by a Selling Stockholder expressly for
use in the information provided under the caption “Selling Stockholders” in the Preliminary
Prospectus or the Prospectus;
(vii) Neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus, any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court
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or governmental action, order or decree, otherwise (in each case) than as set forth or
contemplated in the Pricing Prospectus or that would not result in any material adverse
effect on the business, financial condition, Stockholders’ equity or results of operations
of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”); and,
since the respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, except as disclosed or contemplated by the Pricing Prospectus or
the issuance of exercise of shares or stock options granted in the ordinary course of
business pursuant to the Company’s existing stock option plans, there has not been any
material change in the share capital or long term debt of the Company or any of its
subsidiaries or any material change, in or affecting the financial position, stockholders’
equity or results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus;
(viii) The Company and its subsidiaries have good and valid title to all real property
and to all personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Pricing Prospectus or such as
do not materially interfere with the use made of such property by the Company or its
subsidiaries or as would not have a Material Adverse Effect; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them under valid
leases enforceable by the Company;
(ix) The Company and each of its subsidiaries has been duly incorporated and is validly
existing and in good standing under the laws of the jurisdiction of its respective
incorporation, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; except to the extent that
failure to be so qualified would not have a Material Adverse Effect;
(x) The Company has an authorized share capital as set forth in the Pricing Prospectus,
and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and conform in all material
respects to the description of the capital stock contained in the Pricing Prospectus and the
Prospectus; all of the issued share capital of each subsidiary of the Company has been duly
and validly authorized and issued, is fully paid and non-assessable and, except as set forth
in the Pricing Prospectus, is owned, in all material respects, directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed
in the Pricing Prospectus; the holders of the issued share capital of the Company are not
entitled to statutory preemptive or other rights to acquire shares of capital stock; except
as described in the Pricing Prospectus, there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options to purchase from the Company, or
obligations of the Company to issue, shares of capital stock; and the Company’s outstanding
employee stock option plans conform in all material respects to the description contained in
the Pricing Prospectus;
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(xi) The Shares to be sold by the Company have been duly authorized and when issued,
delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and
nonassessable, and will conform to the description thereof contained in the Prospectus;
(xii) This Agreement has been duly authorized, executed and delivered by the Company;
(xiii) All consents, approvals, authorizations, orders, registrations, notifications,
certificates, permits, licenses, clearances and qualifications (hereinafter referred to as
“Governmental Authorizations”) of or with any court or governmental, regulatory or
supranational agency or body or any stock exchange authorities (hereinafter referred to as a
“Governmental Agency”) having jurisdiction over the Company or any of its subsidiaries or
any of their properties required (A) for the execution and delivery by the Company of this
Agreement to be duly and validly authorized; (B) for the consummation by the Company of the
transactions contemplated by this Agreement or (C) for the Company and its subsidiaries to
own or lease their properties and conduct their businesses in the manner described in the
Pricing Prospectus and the Prospectus (except in respect of this subsection (C) for such
Governmental Authorizations, the failure to obtain or make which would not have a material
adverse effect on the ability of the Company and its subsidiaries, taken as a whole, to own
or lease its properties or conduct its business as described in the Pricing Prospectus and
the Prospectus) have been obtained or made and are in full force and effect, except (i) the
registration under the Act of the Shares and (ii) such Governmental Authorization as may be
required under U.S. state securities or Blue Sky laws or any securities laws of
jurisdictions outside the United States in connection with the purchase and distribution of
the Shares by or for the account of the several Underwriters and (iii) the approval for
listing of the Shares on the New York Stock Exchange;
(xiv) The sale and delivery of the Shares to be delivered at the Time of Delivery and
the compliance by the Company with all of the provisions of this Agreement, and the
consummation by the Company of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
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 property or
assets of the Company or any of its subsidiaries is subject, except, in any such case, such
as would not be reasonably likely to have a Material Adverse Effect, nor will such action
result in any violation of the provisions of the certificate of incorporation or bylaws of
the Company or any of its subsidiaries or any statute or any order, rule or regulation of
any Governmental Agency having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except for such violations that are reasonably likely not to have a
Material Adverse Effect;
(xv) Neither the Company nor any of its subsidiaries (a) is in violation of its
certificate of incorporation or bylaws or (b) is in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in any indenture,
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mortgage, deed of trust, loan agreement lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound, except for any such
violation or default that would not reasonably likely have a Material Adverse Effect or any
material adverse effect on the sale of the Shares or the consummation of the transactions
hereby;
(xvi) No stamp or other issuance or transfer taxes or duties are payable by or on
behalf of the Underwriters to the United States or any political subdivision or taxing
authority thereof or therein in connection with (A) transfer of the Shares to the several
Underwriters in the manner contemplated herein, or (B) the execution and delivery by the
Company and the Selling Stockholders of this Agreement;
(xvii) Neither the Company nor any of its subsidiaries has taken, directly or
indirectly, any action which was designed to stabilize or manipulate or which has
constituted or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
the Shares; provided, however, that this provision shall not apply to any trading or
stabilization activities conducted by the Underwriters;
(xviii) During the period beginning from the date hereof and continuing to and
including the date ninety (90) days after the date hereof, the Company will not offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the right to
receive, Shares or any such substantially similar securities without the prior written
consent of the Representative; provided, however, that (A) the Company may
issue and sell the securities pursuant to this Agreement, (B) the Company may issue and sell
Common Stock and options to purchase Common Stock pursuant to any employee or director stock
option, employee stock purchase, deferred compensation or 401(k) plans described in the
Prospectus, as such plans are in effect on the date of this Agreement, and (C) the Company
may issue Common Stock upon the exercise of stock options pursuant to any employee stock
option plan; The Company has obtained similar agreements from each of its officers and
directors;
(xix) The statements set forth in the Pricing Prospectus and Prospectus, under the
caption “Capitalization”, insofar as they purport to constitute a summary of the terms of
the Shares;
(xx) Except as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject which individually or
in the aggregate is reasonably likely to result in a Material Adverse Effect; and, to the
Company’s knowledge, no such proceedings are threatened by any Governmental Agency or
threatened by others;
(xxi) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies
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in all material respects with the requirements of the Exchange Act and has been
designed by the Company’s principal executive officer and principal financial officer, or
under their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The Company’s internal control
over financial reporting is effective in all material respects to perform the functions for
which it was designed and the Company is not aware of any material weaknesses in its
internal control over financial reporting;
(xxii) Since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus and the Prospectus, to the Company’s
knowledge, there has been no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably expected to materially affect, the
Company’s internal control over financial reporting;
(xxiii) The Company and each of its subsidiaries have all licenses, franchises,
permits, authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their properties and conduct their
businesses as described in the Prospectus the loss of which in the aggregate would not have
a material adverse effect on the business, financial condition, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as a whole, except for such
licenses, franchises, permits, authorizations, approvals and orders and other concessions
the failure of which to have would not reasonably likely have a Material Adverse Effect; and
(xxiv) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) of the Exchange Act) that comply in all material respects with the
requirements of the Exchange Act; such disclosure controls and procedures have been designed
to ensure that material information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and principal financial officer by others
within those entities; such disclosure controls and procedures are effective in all material
respects to ensure that information required to be disclosed by the Company in reports that
it files or submits under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules and forms;
(xxv) The Company and each of its subsidiaries maintain or are covered by insurance
that the Company reasonably believes to be customary for its businesses, including, but not
limited to, insurance against accidents, third-party injury or general liability and
insurance covering certain real and personal property owned or leased by the Company and
each of its subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and effect,
except where the failure to maintain or be covered by such insurance would not have a
Material Adverse Effect;
(xxvi) There are no contracts or documents of the Company or any of its subsidiaries
that are required to be filed as exhibits to the Registration Statement by the
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Act or by the rules and regulations of the Commission thereunder that have not been so
filed;
(xxvii) The Company is not an “investment company” or an entity “controlled” by an
“investment company”, as such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(xxviii) At the earliest time after the filing of the Initial Registration Statement
that the Company or another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2) under the Act) of the Shares, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(xxix) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
(b) Each of the Selling Stockholders severally and not jointly represents and warrants to, and
agrees with, each of the Underwriters and the Company that:
(i) Such Selling Stockholder has, upon conversion of the Preferred Stock in Common
Stock, and on the First Closing Date or the Second Closing Date, each hereinafter defined,
as the case may be, will have, valid marketable title to the Shares proposed to be sold by
such Selling Stockholder hereunder on such date and full right, power and authority to enter
into this Agreement and the Pricing Agreement and to sell, assign, transfer and deliver such
Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights; and upon delivery of and payment for such
Shares hereunder, the Underwriters will acquire valid title thereto, free and clear of all
voting trust arrangements, liens, encumbrances, equities, claims and community property
rights.
(ii) Such Selling Stockholder has not taken and will not take, directly or indirectly,
any action designed to or which might be reasonably expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(iii) Such Selling Stockholder has executed and delivered a Power of Attorney (“Power
of Attorney”) among the Selling Stockholder and Xxxxxxx Xxxxxxx III and Xxxxx Xxxxxxx (the
“Agent”), naming the Agent as such Selling Stockholder’s attorney-in-fact (and, by the
execution by the Agent of this Agreement, such Agent hereby represents and warrants that he
has been duly appointed as attorney-in-fact by the Selling Stockholders pursuant to the
Power of Attorney) for the purpose of entering into and carrying out this Agreement and the
Pricing Agreement, and the Power of Attorney has been duly executed by such Selling
Stockholder and a copy thereof has been delivered to you.
(iv) Such Selling Stockholder further represents, warrants and agrees that such Selling
Stockholder has deposited in custody, under a Custody Agreement (“Custody Agreement”) with
American Stock Transfer, as custodian (“Custodian”), certificates in negotiable form for the
Shares to be sold hereunder by such Selling Stockholder, for the
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purpose of further delivery pursuant to this Agreement, subject to the conversion of
the Preferred Stock into Common Stock in accordance with the terms thereof. Such Selling
Stockholder agrees that the Shares to be sold by such Selling Stockholder on deposit with
the Custodian are subject to the interests of the Company, the Underwriters and the other
Selling Stockholders, that the arrangements made for such custody, and the appointment of
the Agent pursuant to the Power of Attorney, are to that extent irrevocable, and that the
obligations of such Selling Stockholder hereunder and under the Power of Attorney and the
Custody Agreement shall not be terminated except as provided in this Agreement, the Power of
Attorney or the Custody Agreement by any act of such Selling Stockholder, by operation of
law, whether, in the case of an individual Selling Stockholder, by the death or incapacity
of such Selling Stockholder or, in the case of a trust or estate, by the death of the
trustee or trustees or the executor or executors or the termination of such trust or estate,
or, in the case of a partnership or corporation, by the dissolution, winding-up or other
event affecting the legal life of such entity, or by the occurrence of any other event. If
any individual Selling Stockholder, trustee or executor should die or become incapacitated,
or any such trust, estate, partnership or corporation should be terminated, or if any other
event should occur before the delivery of the Shares hereunder, the documents evidencing
Shares then on deposit with the Custodian shall be delivered by the Custodian in accordance
with the terms and conditions of this Agreement as if such death, incapacity, termination or
other event had not occurred, regardless of whether or not the Custodian shall have received
notice thereof. The Agent has been authorized by such Selling Stockholder to execute and
deliver this Agreement and the Pricing Agreement and the Custodian has been authorized to
receive and acknowledge receipt of the proceeds of sale of the Shares to be sold by such
Selling Stockholder against delivery thereof and otherwise act on behalf of such Selling
Stockholder. The Custody Agreement has been duly executed by such Selling Stockholder and a
copy thereof has been delivered to you.
(v) Each Preliminary Prospectus, insofar as it has related to such Selling Stockholder,
as of its date, has not included any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein not misleading; and the
Registration Statement at the time of effectiveness, and at all times subsequent thereto, up
to the First Closing Date hereinafter defined, as the case may be, (A) such parts of the
Registration Statement and the Prospectus and any amendments or supplements thereto as
relate to such Selling Stockholder, and the Registration Statement and the Prospectus and
any amendments or supplements thereto, to the knowledge of such Selling Stockholder in all
other respects, contained or will contain all statements that are required to be stated
therein in accordance with the 1933 Act and in all material respects conformed or will in
all material respects conform to the requirements of the 1933 Act, and (B) neither the
Registration Statement nor the Prospectus, nor any amendment or supplement thereto, as it
relates to such Selling Stockholder, and, to the knowledge of such Selling Stockholder in
all other respects, included or 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; provided that neither clause (A) nor (B) shall have any
effect if information has been given by such Selling Stockholder to the Company and the
Representative in writing which would eliminate or remedy any such untrue statement or
omission.
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2. On the basis of the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling Stockholders, severally and
not jointly, agree to sell to the Underwriters named in Schedule I hereto, and the Underwriters
agree, severally and not jointly, to purchase 4,347,826 Firm Shares from the Company and the
respective number of Firm Shares set forth opposite the names of the Selling Stockholders in
Schedule II hereto set forth in the Pricing Agreement at the price per share (the “Purchase Price
per Share”) set forth in the Pricing Agreement. The obligation of each Underwriter to the Company
shall be to purchase from the Company that number of full shares which (as nearly as practicable,
as determined by you) bears to 2,347,826, the same proportion as the number of Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total number of Firm Shares
to be purchased by all Underwriters under this Agreement. The obligation of each Underwriter to
each Selling Stockholder shall be to purchase from such Selling Stockholder the number of full
shares which (as nearly as practicable, as determined by you) bears to that number of Firm Shares
set forth opposite the name of such Selling Stockholder in Schedule II hereto, the same proportion
as the number of Shares set forth opposite the name of such Underwriter in Schedule I hereto bears
to the total number of Firm Shares to be purchased by all Underwriters under this Agreement. The
initial public offering price (the “Public Offering Price”) and the Purchase Price per Share shall
be set forth in the Pricing Agreement.
At 10:00 A.M., Chicago Time, on the fourth business day, if permitted under Rule 15c6-1 under
the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act
or unless postponed in accordance with the provisions of Section 12) following the date the
Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A,
the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third
business day if required under Rule 15c6-1 under the Exchange Act) after execution of the Pricing
Agreement), or such other time not later than ten business days after such date as shall be agreed
upon by the Representative and the Company, the Company and the Custodian will deliver to you at
the offices of counsel for the Underwriters or through the facilities of The Depository Trust
Company (“DTC”) for the accounts of the several Underwriters, certificates representing the Firm
Shares to be sold by them, respectively, against payment of the purchase price therefor by delivery
of federal or other immediately available funds, by wire transfer or otherwise, to the Company and
the Custodian. Such time of delivery and payment is herein referred to as the “First Closing
Date”. The certificates for the Firm Shares so to be delivered will be in such denominations and
registered in such names as you request by notice to the Company and the Custodian prior to 10:00
A.M., Chicago Time, on the second business day preceding the First Closing Date, and will be made
available at the Company’s expense for checking and packaging by the Representative at 10:00 A.M.,
Chicago Time, on the business day preceding the First Closing Date. Payment for the Firm Shares so
to be delivered shall be made at the time and in the manner described above at the offices of
counsel for the Underwriters.
In addition, on the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company hereby grants an option to
the several Underwriters to purchase, severally and not jointly, up to an aggregate of 652,174
Option Shares, at the Purchase Price per Share to be paid for the Firm Shares, for use solely in
covering any overallotments made by the Underwriters in the sale and distribution of the Firm
Shares. The option granted hereunder may be exercised at any time (but not more than
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once) within thirty (30) days after the date of the initial public offering upon notice by you
to the Company and the Agent setting forth the aggregate number of Option Shares as to which the
Underwriters are exercising the option, the names and denominations in which the certificates for
such shares are to be registered and the time and place at which such certificates will be
delivered. Such time of delivery (which may not be earlier than the First Closing Date), being
herein referred to as the “Second Closing Date”, shall be determined by you, but if at any time
other than the First Closing Date, shall not be earlier than three (3) nor later than ten (10) full
business days after delivery of such notice of exercise. The number of Option Shares to be
purchased by each Underwriter shall be determined by multiplying the number of Option Shares to be
sold by the Company pursuant to such notice of exercise by a fraction, the numerator of which is
the number of Firm Shares to be purchased by such Underwriter as set forth opposite its name in
Schedule I and the denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute discretion may
make). Certificates for the Option Shares will be made available at the Company’s expense for
checking and packaging at 10:00 A.M., New York City Time, on the business day preceding the Second
Closing Date. The manner of payment for and delivery of the Option Shares shall be the same as for
the Firm Shares as specified in the preceding paragraph.
You have advised the Company and the Selling Stockholders that each Underwriter has authorized
you to accept delivery of its Shares, to make payment and to issue receipts. You, individually and
not as the Representative of the Underwriters, may make payment for any Shares to be purchased by
any Underwriter whose funds shall not have been received by you by the First Closing Date or the
Second Closing Date, as the case may be, for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any obligation hereunder.
3. Upon authorization by you of the release of the Shares, the several Underwriters propose to
offer the Shares for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as Xxxxxxx Xxxxx & Company, L.L.C. may
request upon at least forty-eight hours’ prior notice to the Company and the Selling Stockholders
shall be delivered by or on behalf of the Selling Stockholders to Xxxxxxx Xxxxx & Company, L.L.C.,
through the facilities of DTC, for the account of each Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by wire transfer, payable to the order of the
Selling Stockholders in U.S. dollars in Federal (same day) funds. The Selling Stockholders will
cause the certificates representing the Shares to be made available for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the
office of DTC or its designated custodian (the “Designated Office”).
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Shares and any additional
documents reasonably requested by the Underwriters pursuant to Section 8(l) hereof, will be
delivered at the offices of Xxxxxxx Xxxxx & Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the “Closing Location”), and the Shares will be delivered as specified in
subsection (a) above, all at the Time of Delivery. A meeting will be held at the Closing
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Location at 9:30 a.m., Chicago, Illinois time, on the business day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form reasonably approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required under the Act; to make no further
amendment or any supplement to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus prior to the Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof (unless such amendment or
supplement is necessary to comply with applicable laws, rules or regulations); to advise you
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you a reasonable number
of copies thereof; to timely file all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act within the time required by such Rule; to
timely file all reports required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the Act) is required in connection with the offering or sale of the
Shares; to advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, promptly to use its reasonable best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action as you may reasonably request to
qualify the Shares for offering and sale under the securities laws of such jurisdictions as
you may request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(iii) Prior to 10:00 a.m., Chicago Time, on the second business day succeeding the date
of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of each Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in New York City in such quantities as you may reasonably
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request, and, if the delivery of a prospectus is required at any time prior to the
expiration of nine (9) months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time any event shall have occurred 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 in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such
period in which the Prospectus is required by the Act to be delivered in connection with the
sale of any Shares to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with
sales of any of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as the Underwriters may reasonably
request of an amended or supplemented Prospectus, including with respect to any Underwriter,
a Prospectus complying with Section 10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon as practicable, but in
any event not later than sixteen (16) months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of the Company,
Rule 158);
(v) Not to (and to cause its subsidiaries not to) take, directly or indirectly, any
action which is designed to stabilize or manipulate or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation of the price of
any security of the Company or facilitate the sale or resale of the Shares;
(vi) To file with the Commission such information as may be required by Rule 463 under
the Act;
(vii) If the Company elects to rely upon Rule 462(b) under the Act, the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall
at the time of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act; and
(b) Each of the Selling Stockholders agrees with each of the Underwriters:
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(i) Not to (and to cause its affiliates, partners or agents not to) take, directly or
indirectly, any action which is designed to stabilize or manipulate or which constitutes or
which might reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company or facilitate the sale or resale of the Shares;
(ii) During the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus Supplement, not to offer, sell, contract
to sell or otherwise dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right to receive,
Shares or any such substantially similar securities (other than (a) as bona fide gift or
gifts, (b) to any trust for the direct or indirect benefit of the Selling Stockholder or the
immediate family of the Selling Stockholder, provided that any such transfer shall not
involve a disposition for value, and (c) to limited partners, members or stockholders of the
Selling Stockholder, provided that each such donee, trustee or transferee pursuant to the
foregoing clauses (a), (b) or (c) agrees to be bound in writing to a lock-up substantially
consistent with this subsection (iv)), without your prior written consent; provided,
however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or announces material news or a material event or (2) prior to the
expiration of the initial Lock-Up period, the Company announces that it will release
earnings results during the 15-day period following the last day of the initial Lock-Up
Period, then in each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable, unless Xxxxxxx Xxxxx
& Company, L.L.C. waives, in writing, such extension; each Selling Stockholder hereby
acknowledges that the Company has agreed herein to provide written notice of any event that
would result in an extension of the Lock-Up Period pursuant to the previous sentence to such
Selling Stockholder and agrees that any such notice properly delivered pursuant to Section
14, below, will be deemed to have been given to, and received by, the Selling Stockholder;
such Selling Stockholder hereby further agrees that, prior to engaging in any transaction or
taking any other action that is subject to the terms of this provision during the period
from the date hereof to and including the 34th day following the expiration of the initial
Lock-Up Period, it will give notice thereof to the Company and will not consummate such
transaction or take any such action unless it has received written confirmation from the
Company that the Lock-Up Period (as such may have been extended pursuant to the previous
paragraph) has expired.
6. The Company represents and agrees that:
(a) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(b) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to
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state any material fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the
Underwriters and, if reasonably requested by the Underwriters, will prepare and furnish without
charge to the Underwriters an Issuer Free Writing Prospectus or other document which will correct
such conflict, statement or omission; provided, however, that this representation and warranty
shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to the Company by the
Underwriters expressly for use therein.
7. The Company and Selling Stockholders severally and not jointly covenant and agree with the
several Underwriters that:
(a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the registration of the Shares
under the Act and all other expenses of the Company in connection with the preparation, printing
and filing of the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing the Blue Sky Memorandum, closing documents (including
compilations thereof) and any supplements or amendments thereto; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under U.S. state securities laws as
provided in Section 5(a)(ii) hereof, including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) the filing fees incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, securing any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Shares; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar; and (vi) all other
costs and expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and
(b) the Selling Stockholders will pay or cause to be paid all costs and expenses incident to
the performance of each Selling Stockholder’s obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) any fees and expenses of counsel for each
Selling Stockholder, (ii) each Selling Stockholder’s pro rata share of the fees and expenses of the
Attorney-in-Fact and the Custodian (if any) and (iii) all expenses, stamp duties, transfer taxes
and other taxes and duties incident to the sale and delivery of the Shares to be sold by each
Selling Stockholder to the Underwriters hereunder; and
(c) without the prior consent of the Underwriters, which shall not be unreasonably withheld,
they have not made and will not make any offer relating to the Securities that would constitute a
“free writing prospectus” as defined in Rule 405 under the Act (unless such Free Writing Prospectus
is necessary to comply with applicable laws, rules and regulations); any such free writing
prospectus the use of which has been consented to by the Company and the Underwriters is listed on
Schedule III(a) or Schedule III(b) hereto.
It is understood, however, that the Company shall bear, and the Selling Stockholders shall not
be required to pay or to reimburse the Company for, the cost of any other matters not directly
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relating to the sale and purchase of the Shares pursuant to this Agreement, and that, except
as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees and expenses of their counsel, capital gains,
withholding and income taxes, stock transfer, stamp or other similar taxes on resale of any of the
Shares by them, and any advertising and other expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at the Time of
Delivery, shall be subject to the condition that all representations and warranties and other
statements of the Company and of the Selling Stockholders herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have
performed all of its and their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; all material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission; no
stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Underwriters, shall have furnished to
you such opinion or opinions dated the Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) XxXxxxxxx Will & Xxxxx LLP, counsel for the Company and the Selling Stockholders, Xxxxxxx
LLP, Maryland counsel for the Company, and Xxxxx Xxxxx, Corporate Counsel of the Company, shall
have furnished to you their written opinions dated the Time of Delivery, to the effect set forth in
Annex A hereto;
(d) On the date of the Prospectus prior to the execution of this Agreement, on the effective
date of any post-effective amendment to the Registration Statement filed subsequent to the date of
this Agreement and also at the Time of Delivery, Deloitte & Touche LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in form and substance to the
effect set forth in Annex B hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date
of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action,
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order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus and
other than would not reasonably be expected to have a Material Adverse Effect; and other than as
set forth or contemplated in the Pricing Prospectus, or in the ordinary course of business pursuant
to the Company’s existing stock option plans, since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any material change in the share capital
or long term debt of the Company or any of its subsidiaries or any change in the general affairs,
management, consolidated financial position, Stockholders’ equity or results of operations of the
Company and its subsidiaries taken as a whole that would reasonably to result in a Material Adverse
Effect, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which,
in any such case described in Clause (i) or (ii), is in your judgment so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange, the NASDAQ Global Market, or the American Stock Exchange; (ii) suspension or material
limitation in trading in the Company’s securities on the American Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York declared by the relevant authorities, or a
material disruption in commercial banking or securities settlement or clearance services in the
United States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions or currency
exchange rates or controls in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at the Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(g) The Company shall have complied with the provisions of Section 5(a) hereof with respect to
the furnishing of prospectuses on the second Business Day next succeeding the date of this
Agreement; and
(h) The Company and the Selling Stockholders shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company and of the Selling
Stockholders, respectively, reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling Stockholders, respectively, herein at
and as of the Time of Delivery, as to the performance by the Company and the Selling Stockholders
of all of their respective obligations hereunder to be performed at or prior to the Time of
Delivery, and the Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsection (a) of this Section, and as to such other matters as you may
reasonably request.
(i) If the sale to the Underwriters of the Shares on the First Closing Date is not consummated
because any condition of the Underwriters’ obligations hereunder is not satisfied or because of any
refusal, inability or failure on the part of the Company or the Selling Stockholders to perform any
agreement herein or to comply with any provision hereof, unless such failure to satisfy such
condition or to comply with any provision hereof is due to the default or omission of any
Underwriter, the Company agrees to reimburse you and the other
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Underwriters upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by you and them in connection
with the proposed purchase and the sale of the Shares. Any such termination shall be without
liability of any party to any other party except that the provisions of this Section, Section 7 and
Section 11 shall at all times be effective and shall apply.
9. (a) The Company and each Selling Stockholder, severally and not jointly, agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act or the Exchange Act against any losses, claims, damages or liabilities to
which such Underwriter or such controlling person may become subject under the 1933 Act, the
Exchange Act or other federal or state statutory law or regulation, at common law or otherwise
(including in settlement of any litigation if such settlement is effected with the written consent
of the Company and/or such Selling Stockholders, as the case may be), 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 the Registration
Statement, including the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A and/or Rule 434, if applicable, any preliminary prospectus, the
Prospectus, or any amendment or supplement thereto, 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 and each such
controlling person for any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that neither the Company nor any Selling Stockholder will
be liable in any such case to the extent that (i) any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the Representative,
specifically for use therein; or (ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such loss, claim, damage or
liability suffered or incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which are the subject
thereof from such Underwriter in the offering and (2) such Underwriter failed to deliver or provide
a copy of the Prospectus to such person at or prior to the confirmation of the sale of such Shares
in any case where such delivery is required by the 1933 Act. In addition to their other
obligations under this Section 11(a), the Company and the Selling Stockholders agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any alleged statement or
omission, described in this Section 11(a), they will reimburse the Underwriters on a monthly basis
for all reasonable legal and other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of
a judicial determination as to the propriety and enforceability of the Company’s and the Selling
Stockholders’ obligation to reimburse the Underwriters for such expenses and the possibility that
such payments might later be held to have been improper by a court of competent jurisdiction;
provided, however, that, to the extent any such payment is ultimately deemed to be improper, the
persons receiving such
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payments shall promptly refund them. This indemnity agreement will be in addition to any liability
which the Company and the Selling Stockholders may otherwise have.
Without limiting the extent of the Company’s agreement to indemnify each Underwriter, as
herein provided, each Selling Stockholder’s obligations under the indemnity agreements contained in
paragraph (a) of this Section are further limited so that it is liable only (i) for an amount not
exceeding the net proceeds received by such Selling Stockholder from the sale of Shares by such
Selling Stockholder and (ii) for such losses, claims, damages or liabilities that arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Selling Stockholder furnished
to the Company by such Selling Stockholder in writing expressly for use in the Registration
Statement or Pricing Prospectus, or any amendment or supplement thereof, or any Free Writing
Prospectus hereunder.
(b) Each Underwriter will indemnify and hold harmless the Company 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 an untrue statement or
alleged untrue statement of a material fact contained or incorporated by reference in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
any Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing 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 the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or any Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxxx Xxxxx & Company,
L.L.C. expressly for use therein; and will reimburse the Company and each Selling Stockholder for
any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection, except to the extent it is prejudiced thereby. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties that are different from those
available to the indemnifying party, or the indemnifying parties may
-20-
have conflicting interests which would make it inappropriate for the same counsel to represent
both of them, the indemnified parties shall have the right to select one counsel to assume to
assume such legal defense and otherwise to participate in the defense of such action on behalf of
such indemnified party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection with
the defense thereof. No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim 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 any indemnified party. It is understood that the indemnifying party shall, in
connection with any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of only one separate
firm of attorneys at any time for all indemnified parties not having actual or potential differing
interests among themselves except to the extent that local counsel, in addition to the regular
counsel to such indemnified parties, is required to effectively defend against such action or
proceeding. Notwithstanding anything to the contrary contained herein, no indemnified party effect
the settlement of any claim or action for which indemnity is sought hereunder without the prior
written approval of the indemnifying party.
(d) If the indemnification provided for in this Section is unavailable to an indemnified party
under paragraphs (a) or (b) hereof in respect of any losses, claims, damages or liabilities
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholders and the Underwriters 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 respective relative benefits received by the Company, the Selling Stockholders
and the Underwriters shall be deemed to be in the same proportion in the case of the Company or
each of Selling Stockholder, as the total price paid to the Company or such Selling Stockholders
for the Shares by the Underwriters (net of underwriting discount but before deducting expenses),
and in the case of the Underwriters as the underwriting discount received by them bears to the
total of such amounts paid to the Company and the Selling Stockholders and received by the
Underwriters as underwriting discount in each case as contemplated by the Prospectus. The relative
fault of the Company and each Selling Stockholder and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the Company or such
Selling Stockholder or by the Underwriters and
-21-
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, the Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 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 the immediately preceding paragraph. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section are
several in proportion to their respective underwriting commitments and not joint.
(e) The obligations of the Company and the Selling Stockholders under this Section 9 shall be
in addition to any liability which the Company and the respective 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 9 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 officer and director
of the Company (including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if any, who controls
the Company or any Selling Stockholder within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder at the Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six (36) hours after such default by any Underwriter, you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of
thirty-six (36) hours within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective prescribed periods,
you notify the Company and the Selling Stockholders that you have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Stockholders shall have the right
to postpone the Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may thereby be made reasonably
necessary. The term “Underwriter” as used in this Agreement shall include any person substituted
under this Section
-22-
with like effect as if such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all of the Shares to be purchased at the Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at
the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased at the Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except for the expenses to
be borne by the Company and the Selling Stockholders and the Underwriters as provided in Sections 7
and 12 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the
Company, the Selling Stockholders and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results thereof) made by or
on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any
of the Selling Stockholders, or any officer or director or controlling person of the Company, or
any controlling person of any Selling Stockholder, and shall survive delivery of and payment for
the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company nor
the Selling Stockholders shall then be under any liability to any Underwriter except as provided in
Sections 7 and 9 hereof and except, if for any reason, any Shares are not delivered by or on behalf
of the Selling Stockholders as provided herein, each of the Selling Stockholders pro rata (based on
the number of Shares to be sold by such Selling Stockholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in respect of the Shares
not so delivered except as provided in Sections 7 and 9 hereof.
-23-
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf
of any Underwriter made or given by you jointly or by Xxxxxxx Xxxxx & Company, L.L.C. on your
behalf; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorney-in-Fact for such Selling Stockholder.
14. All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you in care of
Xxxxxxx Xxxxx & Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such
Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the
Company and the Selling Stockholders (and their successors and assigns) and, to the extent provided
in Sections 9 and 10 hereof, the officers and directors of the Company and each person who controls
the Company, any Selling Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
The obligations of the Selling Stockholders hereunder shall not be terminated by operation of
law, whether by the death or incapacity of any individual Selling Stockholder or in the case of a
partnership or corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling Stockholder should die or become
incapacitated, or if any such partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by
or on behalf of the Selling Stockholders in accordance with the terms and conditions of this
Agreement; and actions taken by the Attorney-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorney-in-Fact shall have received notice of such
death, incapacity, dissolution or other event.
16. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or proceeding
against the Company or the Selling Stockholders brought by any Underwriter or by any person who
controls any Underwriter arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any court located in Chicago, Illinois, (ii) waives, to
the fullest extent it may effectively do so, any objection which it may now or hereafter have to
the laying of venue of any such proceeding and (iii) submits to the exclusive jurisdiction of such
courts in any such suit, action or proceeding.
-24-
17. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall
mean any day when the Commission’s office in Washington, D.C. is open for business.
18. This Agreement shall be governed by and construed in accordance with the laws of the State of
Illinois, without regard to principles of conflicts of law.
19. This Agreement may be executed by any one or more of the parties hereto 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 instrument.
20. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders are
authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to
that treatment.
21. The Company and each of the Selling Stockholders acknowledge and agree that (i) the purchase
and sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between
the Company and each of the Selling Stockholders, on the one hand, and the Underwriters, on the
other, (ii) in connection therewith and with the process leading to such transaction the
Underwriters are acting solely as principal and not agent or fiduciary of the Company or the
Selling Stockholders, (iii) the Underwriters have not assumed an advisory or fiduciary
responsibility in favor of the Company and the Selling Stockholders with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether the Underwriters have
advised or are currently advising the Company or any of the Selling Stockholders on other matters)
or any other obligation to the Company or the Selling Stockholders except the obligations expressly
set forth in this Agreement and (iv) the Company and the Selling Stockholders have consulted their
own legal and financial advisors to the extent they deemed appropriate. Each of the Company and
the Selling Stockholders agrees that it will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Company or the
Selling Stockholders, in connection with such transaction or the process leading thereto.
22. This Agreement supersedes all prior agreements and understandings (whether written or oral)
between or among the Company, the Selling Stockholders and the Underwriters, or any of them, with
respect to the subject matter hereof.
23. The Company, each of the Selling Stockholders and the Underwriters hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
-25-
If the foregoing is in accordance with your understanding, please sign and return to us six
(6) counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the
Company and the Selling Stockholders for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
[Signature Pages Follow]
-26-
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such
Selling Stockholder pursuant to a validly existing and binding Power of Attorney which authorizes
such Attorney-in-Fact to take such action.
| Very truly yours, A. M. CASTLE & CO. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| By: | /s/ Xxxxxxx Xxxxxxx III | |||
| Name: | Xxxxxxx Xxxxxxx III | |||
| Title: | Attorney-in-Fact | |||
| As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement | ||||
Accepted as of the date hereof:
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxxxxx & Company, Inc.,
KeyCorp Capital Markets Inc.
Xxxxxxxxx & Company LLC
Xxxxxxxxx & Company, Inc.,
KeyCorp Capital Markets Inc.
Xxxxxxxxx & Company LLC
By:
|
/s/ Xxxxxx X. Xxxxxxxx Xx. | |||
| Name: Xxxxxx X. Xxxxxxxx Xx. |
Xxxxxxx Xxxxx & Company, L.L.C.
On behalf of each of the Underwriters
On behalf of each of the Underwriters
-27-
SCHEDULE I
| Total Number | ||||
| of Shares to | ||||
| Underwriter | be Purchased | |||
Xxxxxxx Xxxxx & Company, L.L.C. |
1,739,130 | |||
Xxxxxxxxx & Company, Inc. |
1,304,348 | |||
KeyBanc Capital Markets Inc. |
869,565 | |||
Xxxxxxxxx
& Company LLC. |
434,783 | |||
Total |
4,347,826 | |||
SCHEDULE II
| Total Number of | ||||
| Selling Stockholder | Shares to be Sold | |||
Xxxxx X. Xxxxxxxx |
338,849 | |||
Xxxxxxxxx X. Xxxxxxxx 2001 Trust |
196,424 | |||
Xxxxxx X. Xxxxxxx |
61,549 | |||
Xxxxxxx Xxxxxxx QTIP Trust dated 11/20/91 for the benefit of Hope X. Xxxxxxx |
92,317 | |||
Xxxxxx X. Xxxxxx Trust dated 11/22/74 |
53,580 | |||
Xxxxxx Xxxxxxx |
54,327 | |||
Xxxxx X. Xxxxxxxx Primary Trust dated 04/07/94 |
59,895 | |||
Xxxx XxXxxxx Xxxxxxx 1980 Trust for the benefit of Xxxxx X. Xxxxxxxx |
63,528 | |||
Xxxx XxXxxxx Xxxxxxx 1980 Trust for the benefit of Xxxxxxxx X. X’Xxxxxx |
37,369 | |||
Xxxx X. Xxxxxx |
6,979 | |||
Xxxxx X. Xxxxxx, III |
21,211 | |||
Xxxx Xxxx XxXxxxx |
6,232 | |||
Xxxx X. XxXxxxx |
4,000 | |||
Xxxxx Xxxxxxxxx |
10,000 | |||
Xxxxx Xxxxxxxxx |
9,221 | |||
Xxxxxx X. Xxxxxxxxx |
5,979 | |||
Xxxxxx X. Xxxxxx |
2,392 | |||
Xxxx X. Xxxxxx |
1,794 | |||
Xxxxxx X. Xxxxxxxxx |
2,990 | |||
Xxxxxxx X. X’Xxxxxx |
6,000 | |||
Xxxxxxxx X. X’Xxxxxx |
14,948 | |||
Xxxxx X. Xxxxxx |
3,490 | |||
Hope X. Xxxxxxx |
29,895 | |||
Xxxxx Xxxxxxx, XX |
5,979 | |||
Xxxxxxx X. Xxxxxxx |
6,979 | |||
Xxxx Xxxxxx Xxxxxxxxx Family Foundation |
9,474 | |||
E.B.R. Foundation |
9,474 | |||
Xxxx X. Xxxxxxx Foundation |
34,895 | |||
Xxxxxxx and Hope Xxxxxxx Foundation |
22,685 | |||
Xxxxxxx X. Xxxxxxx, III as Custodian under the Illinois Uniform Transfers to
Minors Act for Xxxx X. Xxxxxxxx |
5,979 | |||
Xxxxxxx X. Xxxxxxx, III as Custodian under the Illinois Uniform Transfer to
Minors Act for Xxxx X. Xxxxxxxxx |
7,474 | |||
Xxxxxxx X. Xxxxxxx, III as Custodian under the Illinois Uniform Transfers to
Minor Act for Xxxxx X. Xxxxxxxx |
5,979 | |||
Xxxxxxx X. Xxxxxxx, III as Custodian under the Illinois Uniform Transfers to
Minors Act for Xxxxx Xxxxxxxxx |
5,232 | |||
| Total Number of | ||||
| Selling Stockholder | Shares to be Sold | |||
Xxxxxxxxx X. Xxxxx 1992 Trust |
2,242 | |||
Xxxxx Xxxxxxx, III Trust dated 01/07/75 |
3,990 | |||
Xxxxxxxxx X. Xxxxxxx 1999 Trust dated 8/3/99 |
4,000 | |||
Xxxxxxx Xxxxxxx Trust U/A dated 02/09/79 for the benefit of Xxxxxxxxx X.
Xxxxxxxx |
7,474 | |||
Trust U/W Xxxxxxxxx X. Xxxxxx for the benefit of Xxxxxx X. Xxxxxxx dated
07/08/88 |
18,685 | |||
Xxxxxxx Xxxxxxx GST Exempt Trust dated 11/20/91 for the benefit of Hope X.
Xxxxxxx |
26,158 | |||
Hope X. Xxxxxxx Irrevocable Trust dated 02/02/63 |
14,948 | |||
Xxxxx Xxxxxx Xxxxxx, III Trust dated 05/29/84 |
16,958 | |||
Trust U/W X.X. Xxxxxx for the benefit of H. Xxxxxx Xxxxxx, III dated 07/08/88 |
5,979 | |||
Xxxxxxx Xxxxxxx Trust U/A dated 02/09/79 for the benefit of Xxxxx X. Xxxxxx,
III |
7,474 | |||
Xxxx X. Xxxxxxxx 2005 Trust |
5,979 | |||
Xxxx X. Xxxxxxx Trust U/A dated 12/29/79 |
10,000 | |||
Xxxxx Xxxxxxx, III 1955 Trust |
3,000 | |||
Trust U/W Xxxxxxxxx X. Xxxxxx for the benefit of Xxxxxx X. Xxxxxx dated
07/08/88 |
24,664 | |||
Trust U/W Xxxxxxxxx X. Xxxxxx for the benefit of Xxxxx Xxxxxxx, XX dated
07/08/88 |
2,000 | |||
Trust U/W X.X. Xxxxxx for the benefit of Xxxxx X. Xxxxxx dated 07/08/88 |
5,979 | |||
Xxxxx X. Xxxxxx 1994 Trust |
11,958 | |||
Xxxxxxxx X’Xxxxxx 1996 Trust |
11,510 | |||
Trust U/W Xxxxxxxxx X. Xxxxxx for the benefit of Xxxxx X. Xxxxxx dated
07/08/88 |
2,000 | |||
Xxxxx Xxxxxxxxx 1992 Trust dated 12/3/92 |
10,463 | |||
Xxxxxxx X. Xxxxxxxxxxx, Xx. 1996 Trust dated 6/10/94 |
947 | |||
Xxxxxxx X. X’Xxxxxx Trust U/A dated 06/11/87 |
7,474 | |||
Xxxxx Xxxxxx Xxxxxxxxx 2007 Trust |
7,474 | |||
Xxxx X. XxXxxxx GST Exempt Trust |
4,000 | |||
Xxxx XxXxxxx Trust dated 01/27/81 |
7,474 | |||
Xxxx XxXxxxx Xxxxxxx 1980 Trust for the benefit of Xxxxxxx Xxxxxxx |
14,948 | |||
Xxxxx X. Xxxxxx GST Exempt Trust |
4,000 | |||
Xxxxx X. Xxxxxx Trust U/W Xxxxx X. Xxxxxxxx |
3,737 | |||
Xxxxxxx X. Xxxxxxxxxxx, Xx. 1993 Trust |
1,495 | |||
Xxxxxxxx X. X’Xxxxxx Primary Trust |
12,000 | |||
Xxxxxx X. Xxxxxxx, XX Trust |
10,474 | |||
Xxxxxx X. Xxxxxxx, III 1993 Trust |
2,990 | |||
Trust U/W Xxxxxxxxx X. Xxxxxx for the benefit of Xxxxxx Xxxxxxx dated 07/08/88 |
20,927 | |||
The Cassatt Family Trust |
5,000 | |||
| Total Number of | ||||
| Selling Stockholder | Shares to be Sold | |||
Xxxxxx Xxxxxx Xxxxxxxxx 1994 Trust |
32,138 | |||
Xxxxxxx Xxxxxxx U/A dated 12/17/79 |
14,948 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxx Xxxxxxx,
III |
22,421 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxxx X. Xxxxxx |
26,158 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxx X. Xxxxxx |
10,463 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxxx X. Xxxxxxx |
26,158 | |||
Trust under the deed of Xxxx X. Xxxxxxx, dated 12/07/49 for the benefit of
Xxxxxxx Xxxxxxx |
74,738 | |||
Xxxxxxx Xxxxxxx Trust under the deed of Xxxx X. Xxxxxxx dated 07/24/68 |
56,054 | |||
Trust under the deed of Xxxx X. Xxxxxxx, dated 12/07/49 for the benefit of
Xxxxxxxx X. X’Xxxxxx |
108,370 | |||
Xxxxxxxx X. X’Xxxxxx Trust under the deed of Xxxx X. Xxxxxxx dated 07/24/68 |
59,790 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxxx Xxxxxxx |
26,158 | |||
Residuary Trust U/W of Xxxxx Xxxxxxx, Xx. for the benefit of Xxxxxx X. Xxxxxxx |
28,400 | |||
Trust under
the deed of Xxxxxxx Xxxxxxx, dated 02/12/64 for the benefit of Xxxxxxxxx X. Xxxxxxxx |
18,684 | |||
Total |
2,000,000 | |||
SCHEDULE III
(a) Issuer Free Writing Prospectus
[None.]
(b) Underwriter Free Writing Prospectus
[None.]
Annex A — Opinion of XxXxxxxxx Will & Xxxxx LLP
(a) No consent, approval, authorization, order, registration or qualification of or with any
governmental agency is required for the issue and sale of the Shares or the compliance by the
Company with the Underwriting Agreement, or, to our knowledge, the Selling Stockholders of the
Underwriting Agreement, except for the registration under the Act of the Shares and the listing of
the Shares on the New York Stock Exchange, subject to notice of issuance, each of which has been
obtained or made, and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(b) We have been advised by the staff of the Securities and Exchange Commission that the
Registration Statement has been declared effective under the Act and, to our knowledge, no stop
order suspending the effectiveness of the Registration Statement or any part of it has been issued
against the Company and no proceedings for that purpose are pending or contemplated;
(c) The Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended;
(d) The Registration Statement and the Prospectus in effect prior to the Time of Delivery and
the documents incorporated by reference in the Prospectus and any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the financial statements and
related schedules and other financial data therein or omitted therefrom, as to which such counsel
need express no opinion), when they became effective or were filed with the Commission, as the case
may be appeared on their face to be appropriately responsive in all material respects to the
applicable requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;
(e) The sale of the Shares by the Company, and the compliance by the Company with all of the
provisions of the Underwriting Agreement and the consummation of the transactions contemplated
under the Underwriting Agreement, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company, its subsidiaries or
the Selling Stockholders is a party and that is filed or incorporated by reference to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2006, except as such conflicts, breaches
or defaults that individually or in the aggregate would not have a Material Adverse Effect;
(f) The Power of Attorney and the Custody Agreement of each Selling Stockholder is a valid and
binding agreement of such Selling Stockholder enforceable in accordance with its terms under
Delaware law. In providing this opinion, we have assumed that each Selling Stockholder has
satisfied those legal requirements that are applicable to it, including due execution and delivery,
to the extent necessary to make the Underwriting Agreement, the Power of Attorney and the Custody
Agreement enforceable against it, that each Selling Stockholder has full legal right, capacity,
power and authority to duly execute and deliver such agreements, obligation or instrument and that
each Selling Stockholder’s execution, delivery and compliance with such agreement, obligation or
instrument does not conflict with agreements or obligations
A-1
of the Selling Stockholder other than agreements or obligations contained in the Underwriting
Agreement, the Power of Attorney and the Custody Agreement.
We have participated in conferences with representatives of the Company and its independent
accountants and with representatives of you and your counsel at which conferences the contents of
the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters
were discussed and, although we are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the Registration Statement, the Pricing Disclosure Package, the
Prospectus and have not made any independent check or verification thereof, based on the foregoing,
no facts have come to our attention to cause us to believe (1) that the Registration Statement, at
the time of its effective date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (2) that the Pricing Disclosure Package at the Applicable Time (which we assume to be
the date of the Underwriting Agreement) contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that (3) the Prospectus as of its date
and the date hereof contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than the financial statements,
schedules and other financial information and data contained therein, as to which we express no
advice or belief).
Opinion of Venable
(a) The Company has been duly incorporated, is validly existing as a corporation, and in good
standing under the laws of Maryland, with corporate power to own its properties and conduct its
business as described in the Prospectus;
(b) The Company has full corporate power and authority to enter into and perform its
obligations under the Underwriting Agreement;
(c) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
(d) The sale of the Shares by the Company, and the compliance by the Company with all of the
provisions of the Underwriting Agreement and the consummation of the transactions contemplated
under the Underwriting Agreement, will not conflict with or result in a breach or violation of the
provisions of the certificate of incorporation or bylaws of the Company;
Opinion of Corporate Counsel
(a) To my knowledge and other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
A-2
which would individually or in the aggregate have a material adverse effect on the current
consolidated financial position, shareholders’ equity or results of operations of the Company and
its subsidiaries; and, to my knowledge with no independent inquiry, no such proceedings are
threatened or contemplated by any governmental agency or threatened by others;
(b) The sale of the Shares by the Company and the compliance by the Company with all of the
provisions of the Underwriting Agreement and the consummation of the transactions contemplated
under the Underwriting Agreement, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company, its subsidiaries is a
party or by which the Company, its subsidiaries are bound or to which any of the property or assets
of the Company, its subsidiaries are subject, except as such conflicts, breaches or defaults that
individually or in the aggregate would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of
the certificate of incorporation or bylaws of the Company or, to my knowledge, any statute or any
order, rule or regulation of any Governmental Agency having jurisdiction over the Company, its
subsidiaries, or any of their properties;
(c) The Company’s capital stock consists of 30,000,000 authorized shares of common stock, par
value $0.01, with • shares issued and outstanding as of March •, 2007 and 10,000,000 authorized
shares of preferred stock, par value $0.01, with • shares issued and outstanding as of March •,
2007. All of the issued shares of the Company (including the Shares represented by the Shares
being delivered by the Selling Stockholders at the Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable; except as disclosed in the Prospectus,
the holders of outstanding shares of the Company are not entitled to statutory pre-emptive rights
to acquire the Shares;
(d) I am not aware of any contracts or other documents of a character required to be filed as
an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 which
are not filed thereto.
I have participated in some conferences with representatives of the Company and its
independent accountants and with representatives of you and your counsel at which conferences the
contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and
related matters were discussed and, although I am not passing upon and assume no responsibility for
the accuracy, completeness or fairness of the Registration Statement, the Pricing Disclosure
Package, the Prospectus and have not made any independent check or verification thereof, based on
the foregoing, no facts have come to my attention to cause me to believe (1) that the Registration
Statement, at the time of its effective date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (2) that the Pricing Disclosure Package at the Applicable Time (which we
assume to be the date of the Underwriting Agreement) contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that (3) the Prospectus as of its
date and the date hereof contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
A-3
misleading (other than the financial statements, schedules and other financial information and
data contained therein, as to which we express no advice or belief).
A-4
Annex B — Form of Comfort Letter of Deloitte & Touche LLP
B-1
Exhibit A – Pricing Agreement
A.M. CASTLE & CO.
PRICING AGREEMENT
May 23, 2007
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated May 23, 2007 (the “Underwriting
Agreement”) relating to the sale by the Company and the Selling Stockholders and the purchase by
the several Underwriters for whom Xxxxxxx Xxxxx & Company, L.L.C., Xxxxxxxxx & Company, Inc.,
KeyBanc Capital Markets, and Xxxxxxxxx & Company LLC are acting as representatives (the
“Representatives”), of the above Shares. All terms herein shall have the definitions contained in
the Underwriting Agreement except as otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and each of the Selling
Stockholders agree with the Representatives as follows:
1. The initial public offering price per share for the Shares shall be $33.00.
2. The purchase price per share for the Shares to be paid by the several Underwriters shall be
$31.1025, being an amount equal to the initial public offering price set forth above less $1.8975
per share.
| Very truly yours, A. M. CASTLE & CO. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxxx III | |||
| Title: | Attorney-in-Fact | |||
| As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to the Underwriting Agreement | ||||
Accepted as of the date hereof:
Xxxxxxx Xxxxx & Company, L.L.C.
On behalf of each of the Underwriters
On behalf of each of the Underwriters
By: |
||||
| Name: | ||||
| Title: |
