Underwriting Agreement
Exhibit 1.1
6,087,000 Shares of Common Stock
April 5, 2006
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxxx & Co. Incorporated
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
Xxxxxxx Xxxxx & Company, L.L.C.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxxx & Co. Incorporated
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
Xxxxxxx Xxxxx & Company, L.L.C.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the “Selling Stockholders”) of American
Reprographics Company, a Delaware corporation (the “Company”), propose to sell to the several
Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate of 6,087,000 shares (the “Underwritten
Shares”) and, at the option of the Underwriters, up to an additional 913,000 shares (the “Option
Shares”) of the Common Stock, par value $.001 per share (the “Stock”), of the Company. The
Underwritten Shares and the Option Shares are herein referred to as the “Shares”.
The Company and the Selling Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
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herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus (together with any supplement thereto) included in such registration
statement (and any amendments thereto) before it becomes effective, any prospectus (together with
any supplement thereto) filed with the Commission pursuant to Rule 424(a) under the Securities Act
and the prospectus (together with any supplement thereto) included in the Registration Statement at
the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the
prospectus in the form first used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case
may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Shares were first made (the “Time of Sale”), the
Company had prepared the following information (collectively with the information set forth on
Annex B(ii), the “Time of Sale Information”): a Preliminary Prospectus dated March 29, 2006
(including a base prospectus dated March 28, 2006), and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex B(i) hereto.
In addition, the Selling Stockholders, as and to the extent indicated in Schedule II hereto,
agree, severally and not jointly, to sell the Option Shares to the several Underwriters and the
Underwriters shall have the option to purchase at their election up to 913,000 Option Shares at the
Purchase Price. The Underwriters, on the basis of the representations and warranties and
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agreements herein contained and subject to the conditions set forth herein, shall have the
option to purchase, severally and not jointly, from each of the Selling Stockholders at the
Purchase Price that portion of the number of Option Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Option Shares by a fraction the numerator of which is the maximum number
of Option Shares which such Underwriter is entitled to purchase and the denominator of which is the
maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder.
Any such election to purchase Option Shares shall be made in proportion to the maximum number of
Option Shares to be sold by each Selling Stockholder as set forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the date of this Agreement,
by written notice from the Representatives to an Attorney-in-Fact (as defined below). Such notice
shall set forth the aggregate number of Option Shares as to which the option is being exercised and
the date and time when the Option Shares are to be delivered and paid for which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of
such notice (unless such time and date are postponed in accordance with the provisions of Section
12 hereof). Any such notice shall be given at least two Business Days prior to the date and time
of delivery specified therein.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Attorneys-in-Fact (as defined below) for the respective Selling
Stockholders to the Representatives, in the case of the Underwritten Shares, at the offices of X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M. New York City time
on April 11, 2006, or at such other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Representatives and the Attorneys-in-Fact may agree upon
in writing or, in the case of the Option Shares, on the date and at the time and place specified by
the Representatives in the written notice of the Underwriters’ election to purchase such Option
Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the
“Closing Date” and the time and date for such payment for the Option Shares, if other than the
Closing Date, is herein referred to as the “Additional Closing Date”. The Attorney-in-Fact for
Xxxxx Xxx shall be the Company and it is understood and acknowledged that the Company shall deduct,
from the payment for the Shares to be sold by Xx. Xxx, an amount equal to the exercise price with
respect to the options to be exercised by Xx. Xxx and any applicable tax withholdings.
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Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Selling Stockholders. The certificates for the Shares will be made available for
inspection and packaging by the Representatives at the office of X.X. Xxxxxx Securities Inc. set
forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing
Date or the Additional Closing Date, as the case may be.
(d) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Selling Stockholders with respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult
with their own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
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respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Time of Sale Information. No statement of
material fact included in the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is required to be included
in the Prospectus has been omitted therefrom.
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no representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto.
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stockholders’ equity or results of operations of the Company and its subsidiaries taken as a
whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to the Company and its subsidiaries
taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or any action, order
or decree of any court or arbitrator or governmental or regulatory authority, except in each case
as otherwise disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus.
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(k) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
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its subsidiaries, would have a Material Adverse Effect; to the knowledge of the Company, no
such investigations, actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement that are not so described in the
Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no
statutes, regulations or contracts or other documents that are required under the Securities Act to
be filed as exhibits to the Registration Statement or described in the Registration Statement or
the Prospectus that are not so filed as exhibits to the Registration Statement or described in the
Registration Statement, the Time of Sale Information and the Prospectus.
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contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance
with all permits, licenses, certificates or other authorizations or approvals required of them
under applicable Environmental Laws to conduct their respective businesses; and (z) have not
received notice of any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants except
as such has been classified as a “de minimis” potentially responsible party by the Environmental
Protection Agency, and (ii) to the Company’s knowledge, there are no costs or liabilities
associated with Environmental Laws applicable to the Company or its subsidiaries, except, in the
case of each of (i)(x), (i)(y), and (i)(z) above, for any such failure to comply, or failure to
receive required permits, licenses or approvals, or cost or liability as would not, individually or
in the aggregate, have a Material Adverse Effect.
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Company, the sale of the Shares to be sold by the Selling Stockholders hereunder, except for
any rights that have been waived.
(aj) Status under the Securities Act. The Company is not an ineligible issuer as defined
under the Securities Act at the times specified in the Securities Act in connection with the
offering of the Shares.
(ak) NYSE Governance Requirements. The Company is in compliance in all material respects with
all applicable corporate governance requirements set forth in the Listed Company Manual of the New
York Stock Exchange (the “Exchange”).
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Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder; this Agreement, the Power of Attorney and the Custody
Agreement have each been duly authorized, executed and delivered by such Selling Stockholder.
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reliance upon and in conformity with any information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use in the Time of
Sale Information.
(f) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
such Selling Stockholder (including its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus, other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex B(i)
hereto and other written communications approved in writing in advance by the Company and the
Representatives.
Each of the Selling Stockholders represents and warrants that certificates in negotiable form
or book-entry form representing all of the Shares to be sold by such Selling Stockholders hereunder
have been placed in custody under a Custody Agreement relating to such Shares, in the form
heretofore furnished to you, duly executed and delivered by such Selling Stockholder to Mellon
Investor Services LLC, as custodian (the “Custodian”), and that such Selling Stockholder has duly
executed and delivered a Power of Attorney, in the form heretofore furnished to you, appointing the
person or persons indicated in Schedule II hereto, and each of them, as such
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Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the
“Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling
Stockholders as provided herein, to authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with
the transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares represented by the
certificates or in book-entry form, held in custody for such Selling Stockholder under the Custody
Agreement, are subject to the interests of the Underwriters hereunder, and that the arrangements
made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder
of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the
Selling Stockholders specifically agrees that the obligations of such Selling Stockholder 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 an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in the case of a partnership,
corporation or similar organization, by the dissolution of such partnership, corporation or
organization, or by the occurrence of any other event. If any individual Selling Stockholder or
any such executor or trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership, corporation or similar organization should be
dissolved, or if any other such event should occur, before the delivery of the Shares hereunder,
certificates representing such Shares shall be delivered by or on behalf of such Selling
Stockholder in accordance with the terms and conditions of this Agreement and the Custody
Agreement, and actions taken by the Attorneys-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 Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution or other event.
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act, and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Shares; and
the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request.
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documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy
of the Registration Statement as originally filed and each amendment thereto (without exhibits) and
(B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus
(including all amendments and supplements thereto and documents incorporated by reference therein)
and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used
herein, the term “Prospectus Delivery Period” means such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus
relating to the Shares is required by law to be delivered (or required to be delivered but for Rule
172 under the Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
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the economic consequences of ownership of the Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representatives, other than the Shares to be
sold hereunder and any shares of Stock of the Company issued under existing employee stock plans.
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(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex B(i) or prepared pursuant to Section 3(c)
or Section 4(c) above, or (iii) any free writing prospectus prepared by such underwriter and
approved by the Company in advance in writing (each such free writing prospectus referred to in
clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that Underwriters
may use a term sheet substantially set forth in the form of Annex B(ii) hereto and may orally
provide the pricing information set forth in Annex B(ii) hereto without the consent of the Company.
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hereof; and all requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
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All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
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shall not relieve it from any liability that it may have under paragraphs (a), (b) and (c) of
this Section 9 except to the extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
to an Indemnified Person otherwise than under paragraphs (a), (b) and (c) of this Section 9. If
any such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary or (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such reasonable fees and expenses
shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter shall be designated
in writing by the Representatives, any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company and any such separate firm for the Selling Stockholders shall
be designated in writing by the Attorneys-in-Fact. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
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referred to in clause (i) but also the relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, shall be deemed to be in
the same respective proportions as the net proceeds (before deducting expenses) received by the
Selling Stockholders from the sale of the Shares and the total underwriting discounts and
commissions received by the Underwriters in connection therewith, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate offering price of the Shares. The
relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters,
on the other, shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and the Selling Stockholders or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
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have been suspended or materially limited on or by any of the Exchange or the National
Association of Securities Dealers, Inc.; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States shall have occurred; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representatives, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be,
on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
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(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 12 shall be without liability on the part of the Company and the Selling
Stockholders, except that the Company will continue to be liable for the payment of expenses as set
forth in Section 13 hereof and except that the provisions of Section 9 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholders for any reason fail to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket
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costs and expenses (including the fees and expenses of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement and the offering contemplated hereby.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set
forth in Rule 1-02 of Regulation S-X under the Exchange Act.
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(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, | ||||
AMERICAN REPROGRAPHICS COMPANY |
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By: | /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Title: | Chief Executive Officer | |||
MICRO DEVICE, INC. OCB REPROGRAPHICS, INC. BROWNIES BLUEPRINT, INC. XXXXXXXX-POST COMPANY |
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By: | /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
By: | /s/ Kumarakulasingam Xxxxxxxxxxx | |||
Name: | Kumarakulasingam Xxxxxxxxxxx |
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As Attorneys-in-Fact acting on behalf of each of the Selling Stockholders named above. | ||||
XXXXX XXX |
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By: | AMERICAN REPROGRAPHICS COMPANY | |||
By: | /s/ Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxxxxxxxxx Xxxxxxxxxxxx | |||
Title: | Chief Executive Officer | |||
As Attorney-in-Fact acting on behalf of the Selling Stockholder named above. |
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ARC ACQUISITION CO., L.L.C. CHS ASSOCIATES IV XXXXX XXXXX |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx |
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As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named above. | ||||
Accepted: April 5, 2006
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXX X. XXXXX & CO. INCORPORATED
CIBC WORLD MARKETS CORP.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXX X. XXXXX & CO. INCORPORATED
CIBC WORLD MARKETS CORP.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
For themselves and on behalf of the
several Underwriters listed
in Schedule I hereto.
several Underwriters listed
in Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By /s/ Xxxx Xxxxxxxxx
Authorized Signatory
Xxxx Xxxxxxxxx
Vice President
Xxxx Xxxxxxxxx
Vice President
By: XXXXXXX, SACHS & CO.
By /s/ Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Sachs & Co.)
Schedule I
Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities Inc. |
1,978,275 | |||
Xxxxxxx, Sachs & Co. |
1,673,925 | |||
Xxxxxx X. Xxxxx & Co. Incorporated |
760,875 | |||
CIBC World Markets Corp. |
760,875 | |||
Credit Suisse Securities (USA) LLC |
608,700 | |||
Xxxxxxx Xxxxx & Company, L.L.C. |
304,350 | |||
Total |
6,087,000 |
Any purchase by the Underwriters of Option Shares will be made in the same proportions as above.
Schedule II
Number of | Number of | |||||||
Selling Stockholders: | Underwritten Shares: | Option Shares: | ||||||
ARC Acquisition Co., L.L.C.1 |
3,993,103 | 898,448 | ||||||
Micro Device, Inc.2 |
945,600 | — | ||||||
OCB Reprographics, Inc. 2 |
617,934 | — | ||||||
Brownies Blueprint, Inc. 2 |
221,621 | — | ||||||
Xxxxxxxx-Post Company2 |
114,845 | — | ||||||
Xxxxx X. Roy3 |
187,000 | 13,000 | ||||||
CHS Associates IV1 |
6,557 | 1,476 | ||||||
Paige Walsh1 |
340 | 76 | ||||||
Total |
6,087,000 | 913,000 |
1. | Such Selling Stockholder’s attorneys-in-fact are Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx. | |
2. | Such Selling Stockholder’s attorneys-in-fact are Xxxxxxxxxxxxx Xxxxxxxxxxxx and Kumarakulasingam Xxxxxxxxxxx. | |
3. | Such Selling Stockholder’s attorney-in-fact is American Reprographics Company. |
Annex A(i)
Subject Matter of Opinion of Xxxxxx, Xxxxxxxx, Marcus, Vlahos, & Xxxx LLP
(i) The Registration Statement was declared effective under the Securities Act as of the date
and time specified in such opinion; each of the Preliminary Prospectus and the Prospectus was filed
with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified
in such opinion on the date specified therein; and no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A
of the Securities Act against the Company or in connection with the offering is pending or, to the
best knowledge of such counsel, threatened by the Commission.
(ii) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus;
(iii) The Company has an authorized capitalization as set forth in the Prospectus, and the
Shares being delivered at such Closing Date or Additional Closing Date, as the case may be, have
been duly and validly authorized and issued and are fully paid and non assessable; and the Shares
conform to the description of the Stock contained in the Prospectus;
(iv) The Company 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 failure to be so qualified in any such jurisdiction
(such counsel being entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) Each significant subsidiary of the Company has been duly organized and is validly existing
as a corporation or other business entity in good standing under the laws of its jurisdiction of
organization; and all of the issued shares of capital stock or other equity securities of each such
significant subsidiary have been duly and validly authorized and issued, are fully paid and non
assessable in the case of capital stock, and (except for directors’ qualifying shares and except as
described in the Prospectus) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its significant subsidiaries, provided that such counsel
shall state that they believe that both you and they are justified in relying upon such opinions
and certificates);
(vi) We hereby confirm to you that to the actual knowledge of the Primary Lawyer Group (to be
defined in such opinion as lawyers at such firm who have been actively involved in the transaction
and any other lawyers at such firm who have had significant involvement with
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the Company or its subsidiaries) 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 or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of the actual knowledge of this firm’s
Primary Lawyer Group, no such proceedings have been threatened by governmental authorities or
threatened by others;
(vii) Each of the Company and its significant subsidiaries owns or possesses, or can acquire
on reasonable terms, all Intellectual Property; except as described in the Prospectus, (i) to
counsel’s actual knowledge, no third parties have received rights to any such Intellectual Property
from the Company or any of its significant subsidiaries, other than licenses granted in the
ordinary course of business; (ii) to counsel’s actual knowledge, there is no infringement by third
parties of any such Intellectual Property; (iii) counsel confirms based on the actual knowledge of
this firm’s Primary Lawyer Group that there is no action, suit, proceeding or claims pending or
threatened by others challenging the Company’s or any of its significant subsidiaries’ rights in or
to, or the enforceability, validity or scope of, any such Intellectual Property; (iv) to counsel’s
actual knowledge, it is unaware of any facts which would form a basis for any such claim; and (v)
to counsel’s actual knowledge, none of the technology employed by the Company or any of its
significant subsidiaries has been obtained or is being used by the Company or any of its
significant subsidiaries in violation of the rights of any other person;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) The compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein 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 document
filed as an exhibit to the Registration Statement 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, nor will such action
result in any violation of the provisions of the Certificate of Incorporation or By laws of the
Company or any statute or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties;
(x) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date or the
Additional Closing Date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records therein, as to which such
counsel need express no opinion), when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
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contained, in the case of a registration statement which became effective under the Securities
Act, any untrue statement of material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the Commission, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statement therein,
in the light of the circumstances under which they were made when such documents were so filed, not
misleading; and
(xi) Although they do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Time of Sale Information or the
Prospectus, they have no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to such Closing Date or
Additional Closing Date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records therein, as to which such
counsel need express no opinion) contained an 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 , that the Time of Sale Information, at the Time of Sale (which such counsel may assume
to be the date of this 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, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Closing Date or Additional
Closing Date, as the case may be, (other than the financial statements and related schedules and
other financial data derived from accounting records therein, as to which such counsel need express
no opinion) contained an 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, as of such Closing Date or Additional Closing Date, as the case may
be, either the Registration Statement, the Time of Sale Information or the Prospectus or any
further amendment or supplement thereto made by the Company prior to such Closing Date or
Additional Closing date, as the case may be, (other than the financial statements and related
schedules and other financial data derived from accounting records therein, as to which such
counsel need express no opinion) contains an untrue statement of a material fact 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; and they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be described in the Registration
Statement, the Time of Sale Information or the Prospectus which are not filed or described as
required.
A-3
Annex A(ii)
Subject Matter of Opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
(i) No consent, approval, authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties is required for the consummation by the Company of the
transactions contemplated by this Agreement, except (a) the registration under the Securities Act
of the Shares, (b) 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, or (c) such consents, approvals, authorizations,
registrations or qualifications as may be required by the National Association of Securities
Dealers, Inc., in each of cases (b) and (c) as to which such counsel express no opinion;
(ii) The statements set forth in the Prospectus under the caption “Description of Common Stock
and Preferred Stock” insofar as they relate to provisions of the Company’s Certificate of
Incorporation and Bylaws, and set forth in the Prospectus under the caption “Underwriting,” insofar
as they purport to relate to provisions of the Agreement, are accurate and complete in all material
respects;
(iii) The Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended; and
(iv) The Registration Statement , the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Time of Sale Information and the Prospectus and any further amendments
and supplements thereto made by the Company prior to such Closing Date or Additional Closing Date,
as the case may be, (other than the documents incorporated by reference, the financial statements
and related schedules and other financial data derived from accounting records therein, as to which
such counsel need express no opinion) comply as to form in all material respects with the
requirements of the Securities Act.
A-4
Annex A(iii)
Subject Matter of Opinion of Xxxxxx Xxxxxx LLP
as Counsel for Certain Selling Stockholders
as Counsel for Certain Selling Stockholders
(i) This Agreement has been duly executed and delivered on behalf of such Selling Stockholder;
(ii) The Power of Attorney and Custody Agreement have been duly executed and delivered by such
Selling Stockholder, and constitute the legal, valid and binding obligations of such Selling
Stockholder, enforceable against each of the Selling Stockholder in accordance with their
respective terms;
(iii) The performance by ARC Acquisition Co., L.L.C. of its obligations under its Custody
Agreement, its Power of Attorney and the Agreement, including the sale of the Shares to be sold by
it, will not (i) violate its Limited Liability Company Agreement, (ii) violate any law, rule or
regulation applicable to it (except that such counsel express no opinion with respect to the
securities and blue sky laws of the various states), (iii) violate any judgment, injunction, order
or decree which is listed on its certificate attached to the opinion letter or (iv) breach or
result in a default under any indenture, mortgage, instrument or agreement which is listed on its
certificate attached to the opinion letter;
(iv) The performance by CHS Associates IV of its obligations under its Custody Agreement, its
Power of Attorney and the Agreement, including the sale of the Shares to be sold by it, will not
(i) violate its Partnership Agreement, (ii) violate any law, rule or regulation applicable to it
(except that such counsel express no opinion with respect to the securities and blue sky laws of
the various states), (iii) violate any judgment, injunction, order or decree which is listed on its
certificate attached to the opinion letter or (iv) breach or result in a default under any
indenture, mortgage, instrument or agreement which is listed on its certificate attached to the
opinion letter;
(v) The performance by ARC Acquisition Co., L.L.C. and CHS Associates IV of their respective
obligations under this Agreement does not require any consent or approval of any nature from, or
filing with, any governmental authority of the State of Illinois or the United States of America
under any law, regulation or rule applicable to them (except that such counsel express no opinion
with respect to the securities and blue sky laws of the various states), under any judgment,
injunction, order or decree which is listed on the certificates attached to the opinion letter or
under the Delaware Limited Liability Company Act or the Delaware Revised Uniform Partnership Act;
(vi) The performance by Xxxxx Xxxxx of her obligations under her Custody Agreement, her Power
of Attorney and the Agreement does not (i) require any consent or approval of any nature from, or
filing with, any governmental authority of the State of Illinois or the United States of America
under any law, regulation or rule applicable to Xxxxx Xxxxx (except that such counsel express no
opinion with respect to the securities and blue sky laws of the various states), (ii) violate any
judgment, injunction, order or decree which is listed on the
A-5
certificate of Xxxxx Xxxxx attached to the opinion letter or (iii) breach or result in a default
under any indenture, mortgage, instrument or agreement which is listed on the certificate of Xxxxx
Xxxxx attached to the opinion letter; and
(vii) An action based on an adverse claim to the financial asset consisting of the Shares sold
by such Selling Shareholder deposited in or held by DTC, whether such action is framed in
conversion, replevin, constructive trust, equitable lien, or other theory, may not be asserted
successfully against X.X. Xxxxxx Securities Inc. assuming that X.X. Xxxxxx Securities Inc.
acquires security entitlements with respect to such Shares from DTC and none of X.X. Xxxxxx
Securities Inc. or any Underwriter has notice of any adverse claims with respect to such financial
asset.
A-6
Annex A(iv)
Subject Matter of Opinion of Xxxxxx, Xxxxxxxx, Marcus, Xxxxxx & Xxxx, LLP,
as Counsel for Certain Selling Stockholders
as Counsel for Certain Selling Stockholders
(i) A Power of Attorney and a Custody Agreement have been duly authorized, executed and
delivered by such Selling Stockholder and constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms;
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder; and the sale of the Shares to be sold by such Selling Stockholder hereunder
and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action result in any violation of the
provisions of the charter or by-laws or similar organizational documents, as applicable, of such
Selling Stockholder or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or governmental agency or body
is required for the consummation of the transactions contemplated by this Agreement in connection
with the Shares to be sold by such Selling Stockholder hereunder, except such as have been obtained
under the Securities Act and such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the Underwriters;
(iv) Immediately prior to such Closing Date or Additional Closing date, as the case may be,
such Selling Stockholder had good and valid title to the Shares to be sold at such Closing Date or
Additional Closing Date, as the case may be, by such Selling Stockholder under this Agreement, free
and clear of all liens, encumbrances, equities or claims, and full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; and
(v) Good and valid title to such Shares, free and clear of all liens, encumbrances, equities
or claims, has been transferred to each of the several Underwriters who have purchased such Shares
in good faith and without notice of any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial Code.
In rendering the opinion in paragraph (iv), such counsel may rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of, and liens, encumbrances,
equities or claims on, the Shares sold by such Selling Stockholder, provided that
A-7
such
counsel shall state that they believe that both you and they are justified in relying upon
such certificate.
X-0
Xxxxx X(x)
Xxxx-Xxxxxxx Xxxxxxxxxx
Xxxx
X-0
Annex B(ii)
Term Sheet/Pricing Information
Form of Term Sheet:
None
Pricing Information:
The price to the public and the underwriting discount set forth on the cover of the Prospectus.
B-2
Annex C
Significant Subsidiaries
American Reprographics Company, L.L.C.
ARC Acquisition Corporation
OCB, LLC
Reprographics Northwest, LLC
Xxxxxxx’x, Ltd.
C-1
Exhibit A
FORM OF LOCK-UP AGREEMENT
, 2006
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX, SACHS & CO.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: American Reprographics Company -— Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with American Reprographics
Company, a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule I to the Underwriting Agreement (the
“Underwriters”) of certain shares of Common Stock, par value $.001 per share (the “Common Stock”),
of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc. and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, the undersigned will not,
during the period ending 90 days after the date of the prospectus relating to the Public Offering
(the “Prospectus”), (1) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (including without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and securities which may be issued upon exercise of a stock
option or warrant) or (2) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the
prior written consent of X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of the Prospectus, make
any demand for or exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, the undersigned may transfer the undersigned’s Securities (i)
as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in
writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit
of the undersigned or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition for value, (iii) to the extent they are acquired
in open market transactions after the Public Offering, provided that any such transfer is not
required to be reported under Section 16 of the Securities Exchange Act of 1934, as amended, or
(iv) to the Underwriters pursuant to the Underwriting Agreement. For purposes of this Letter
Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is an
entity, the entity may transfer the capital stock of the Company to any wholly-owned subsidiary of
such entity or to such entity’s stockholders, members or partners; provided, however, that in any
such case, it shall be a condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such capital stock subject to the provisions of this
Letter Agreement and there shall be no further transfer of such capital stock except in accordance
with this Letter Agreement, and provided further that any such transfer shall not involve a
disposition for value.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, the undersigned shall be released from all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
Very truly yours, | ||||||
[NAME OF STOCKHOLDER] | ||||||
By: | |
|||||
Name: | ||||||
Title: |