lululemon athletica inc. Common Stock, par value $0.01 per share Underwriting Agreement
Common Stock, par value $0.01 per share
[___], 2007
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Company, LLC
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
UBS Securities LLC
Wachovia Capital Markets, LLC
Xxxxxx Xxxxxx Partners LLC
As representatives (the “Representatives”) of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Company, LLC
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
UBS Securities LLC
Wachovia Capital Markets, LLC
Xxxxxx Xxxxxx Partners LLC
As representatives (the “Representatives”) of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
lululemon athletica, inc., a Delaware corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of [___] shares of the Common Stock, par value $0.01
per share (“Stock”), of the Company, and the stockholders of the Company named in Schedule II
hereto (the “Selling Stockholders”) propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of [___] shares and, at the election of the
Underwriters, up to [___] additional shares of Stock. The aggregate of [___] shares to
be sold by the Company and the Selling Stockholders is herein called the “Firm Shares” and the
aggregate of [___] additional shares to be sold by the Selling Stockholders is herein called
the “Optional Shares”. The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the “Shares”.
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters
that:
(i) A registration statement on Form S-1 (File No. 333-142477) (the “Initial
Registration Statement”) in respect of the Shares has been
filed with the Securities and Exchange Commission (the “Commission”); the
Initial Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for each
of the other Underwriters, 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 Securities Act of 1933, as amended (the “Act”), which became effective
upon filing, no other document with respect to the Initial Registration Statement
has heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective amendment
thereto 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 (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act is hereinafter called a “U.S.
Preliminary Prospectus”; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, 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
Preliminary Prospectus relating to Shares that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in Section 1(a)(iv)
hereof) is hereinafter called the “Pricing Prospectus”; such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the “U.S. Prospectus”; 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) A preliminary base PREP prospectus, an amended and restated preliminary
base PREP prospectus and a final base PREP prospectus, in each case in the English
and French languages and, with respect to the final base PREP prospectus, omitting
the PREP information (as hereinafter defined) in accordance with the rules and
procedures established pursuant to National Instrument 44-103 — Post-Receipt
Pricing, for the pricing of securities after the final receipt for a prospectus has
been obtained (the “PREP Procedures”), have been filed with the securities
commission or corresponding regulatory authority (collectively, the “Canadian
Securities Regulatory Authorities”) in each of the Provinces and Territories of
Canada (collectively, the “Canadian Qualifying
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Jurisdictions”) pursuant to National Policy 43-201 — Mutual Reliance Review
System for Prospectuses and Annual Information Forms (“NP 43-201”), including with
the British Columbia Securities Commission (the “Reviewing Authority”) which has
been notified that it has been selected as the principal regulator pursuant to NP
43-201, in compliance with all applicable securities laws of the Canadian Securities
Regulatory Authorities and the respective regulations and rules made under those
securities laws together with all applicable published policy statements, blanket
orders and rulings of the Canadian Securities Regulatory Authorities and all
discretionary orders or rulings, if any, of the Canadian Securities Regulatory
Authorities made in connection with the transactions contemplated by this Agreement
(collectively, the “Canadian Securities Laws”); a preliminary decision document
under the mutual reliance review system procedures (“MRRS”) provided for under NP
43-201, evidencing that preliminary receipts of the Canadian Securities Regulatory
Authorities in each of the Canadian Qualifying Jurisdictions have been issued in
respect of such preliminary prospectuses, and a final MRRS decision document,
evidencing that final receipts of the Canadian Securities Regulatory Authorities in
each of the Canadian Qualifying Jurisdictions have been issued in respect of such
final prospectus and any amendment thereto, have been issued by the Reviewing
Authority on behalf of the Canadian Securities Regulatory Authorities in the form
heretofore delivered to you for each of the Underwriters (together with all
documents filed in connection therewith); no other document with respect to such
preliminary base PREP prospectus, such amended and restated preliminary base PREP
prospectus or such final base PREP prospectus, or amendment thereto, has heretofore
been filed or transmitted for filing with the Canadian Securities Regulatory
Authorities and no order having the effect of ceasing or suspending the distribution
(as hereinafter defined) of the Shares has been issued by any Canadian Securities
Regulatory Authority and no proceeding for that purpose has been initiated or
threatened by any Canadian Securities Regulatory Authority (the preliminary base
PREP prospectus and the amended and restated preliminary base PREP prospectus in the
English and French languages, as the same may have been amended, filed with the
Canadian Securities Regulatory Authorities being hereinafter called the “Canadian
Preliminary Prospectus” and the final base PREP prospectus in the English and French
languages, as most recently amended, filed with the Canadian Securities Regulatory
Authorities and for which a final MRRS decision document has been obtained, being
hereinafter called the “Canadian Prospectus”; provided that, from and after the time
the supplemented Canadian Prospectus (containing the PREP information) is filed with
the Canadian Securities Regulatory Authorities in accordance with Section 5(a)
hereof, any reference to the Canadian Prospectus herein shall be deemed to refer to
the Canadian Prospectus as so supplemented; and, notwithstanding the foregoing, the
supplemented Canadian Prospectus in
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the English and French languages setting forth the PREP information is
hereinafter referred to as the “supplemented Canadian Prospectus”; the information
included in the supplemented Canadian Prospectus that is omitted from the Canadian
Prospectus but that is deemed under the PREP Procedures to be incorporated by
reference into the Canadian Prospectus on the date of the supplemented Canadian
Prospectus is referred to as the “PREP information”; and “distribution” means
“distribution” or “distribution to the public” of the Shares as those terms are
defined under Canadian Securities Laws); the U.S. Prospectus and the Canadian
Prospectus are hereinafter collectively called the “Prospectuses”;
(iii) No order preventing or suspending the use of any U.S. Preliminary
Prospectus, any Issuer Free Writing Prospectus or any Canadian Preliminary
Prospectus has been issued by the Commission or any Canadian Securities Regulatory
Authority, and each U.S. Preliminary Prospectus and Canadian Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder
and the requirements of Canadian Securities Laws, as applicable, and, in the case of
the U.S. Preliminary Prospectus, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were
made, not misleading and, in the case of the Canadian Preliminary Prospectus, was
true and correct in all material respects and contained no misrepresentation (as
that term is defined under Canadian Securities Laws), and constituted full, true and
plain disclosure of all material facts relating to the Company and its subsidiaries
and the Shares and no material fact or information was omitted therefrom which was
required to be therein or was necessary to make the statements or information
therein not false or misleading in light of the circumstances in which they were
made, within the meaning of the Canadian Securities Laws; 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 by an Underwriter through the Representatives expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the answers therein
to Items 7 and 11(m) of Form S 1 or the preparation of disclosure pertaining to a
Selling Stockholder required by Canadian Securities Laws;
(iv) For the purposes of this Agreement, the “Applicable
Time” 1 is [___:___]m. (Eastern time) on the date of this
Agreement. The Pricing Prospectus, as supplemented by those Issuer Free Writing
Prospectuses listed on Schedule III(b) hereto, taken together (the “Pricing
Disclosure
| 1 | The time at which, or a time immediately prior to the time, the Shares are priced. |
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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) or
Schedule III(b) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the U.S. 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 by an Underwriter through the Representatives expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the answers therein
to Items 7 and 11(m) of Form S-1;
(v) The Registration Statement conforms, and the Prospectuses and any further
amendments or supplements to the Registration Statement and the Prospectuses will
conform, in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and the requirements of Canadian Securities
Laws, as applicable, and do not and will not, as of the applicable effective date as
to each part of the Registration Statement and any amendment or supplement thereto
and as of the applicable filing date as to the U.S. 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; the Canadian Prospectus and any amendment or supplement
thereto, as of the applicable filing date, is and will be true and correct in all
material respects and contains no misrepresentation (as that term is defined under
Canadian Securities Laws), constitutes and will constitute full, true and plain
disclosure of all material facts relating to the Company and its subsidiaries and
the Shares as required by Canadian Securities Laws and no material fact or
information has been omitted therefrom which is required to be stated therein or is
necessary to make the statements or information therein not false or misleading in
light of the circumstances in which they were made, in each case within the meaning
of Canadian Securities Laws; 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 by an Underwriter
through the Representatives expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7 and 11(m) of
Form S-1 or
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the preparation of disclosure pertaining to a Selling Stockholder required by
Canadian Securities Laws;
(vi) The Company and its subsidiaries, when taken together as a whole, have not
sustained since the date of the latest audited financial statements included in the
Pricing Prospectus and the Canadian Prospectus 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 dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus and the Canadian Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus and
the Canadian Prospectus, there has not been any change in the capital stock or long
term debt of the Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”), otherwise than as set forth or contemplated in the Pricing
Prospectus and the Canadian Prospectus;
(vii) The Company and its subsidiaries do not own any real property and have
good and marketable title 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 and the Canadian Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and the
Company and its subsidiaries are in compliance with the terms and conditions of all
leases under which any real property and buildings are held by them, which real
property and buildings are held under valid, subsisting and enforceable leases, with
such exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries;
(viii) 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 Pricing Prospectus and the Canadian 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, except
where the failure to so qualify or be in good standing would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; and each
subsidiary of the Company has been duly incorporated and is
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validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Pricing Prospectus and
the Canadian Prospectus, and has been duly qualified as a foreign entity for the
transaction of business and is in good standing under the laws of each jurisdiction
in which it owns or leases properties or conducts any business so as to require such
qualification except where the failure to so qualify or be in good standing would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(ix) After giving effect to the transactions contemplated by the Reorganization
Agreements (as defined below) (such transactions, the “Reorganization”), the Company
will have an authorized capitalization as set forth in the Pricing Prospectus and
the Canadian Prospectus and all of the issued shares of capital stock of the Company
have been or, after giving effect to the Reorganization, will be duly and validly
authorized and issued and are or, after giving effect to the Reorganization, will be
fully paid and non-assessable and will conform to the description of the Stock
contained in the Pricing Prospectus and the Prospectuses; all of the issued shares
of capital stock of each subsidiary of the Company have been or, after giving effect
to the Reorganization, will be duly and validly authorized and issued, are or, after
giving effect to the Reorganization, will be fully paid and non-assessable and
(except for directors’ qualifying shares and except as otherwise set forth in the
Pricing Prospectus and the Canadian Prospectus) are or, after giving effect to the
Reorganization, will be owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims; and, except as set forth in each of
the Pricing Prospectus and the Canadian Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, Stock are or, after giving
effect to the Reorganization, will be outstanding;
(x) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been or, after giving effect to the Reorganization, will
be duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully paid and non
assessable and will conform to the description of the Stock contained in the
Prospectuses;
(xi) The issue and sale of the Shares to be sold by the Company and the
execution and delivery of, and the compliance by the Company with this Agreement and
the agreements listed in Schedule IV hereto (the “Reorganization Agreements”) and
the consummation of the transactions herein and therein contemplated will not (i)
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
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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; (ii) result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company; or (iii) result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except in the case of (i) or (iii), such as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the consummation by the
Company and its subsidiaries of the transactions contemplated by this Agreement and
the Reorganization Agreements, except (A) the registration under the Act of the
Shares, (B) the filing of the supplemented Canadian Prospectus with the Canadian
Securities Regulatory Authorities, (C) 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 and (D) where the failure to obtain any such consent, approval,
authorization, order, registration or qualification would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect or to impair
the ability of the Company to issue and sell the Shares or of the Company and its
subsidiaries to consummate the transactions contemplated by this Agreement and the
Reorganization Agreements;
(xii) Each of the Reorganization Agreements has been duly authorized, executed
and delivered by the Company and any of its subsidiaries that are parties thereto
and conforms in all material respects to the description thereof in the Prospectuses
and constitutes a valid and binding obligation of the Company enforceable against it
in accordance with its terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights generally and (ii) to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(xiii) Neither the Company nor any of its subsidiaries is (i) in violation of
its Certificate of Incorporation or By-laws or (ii) in default in the performance or
observance of any material obligation, agreement, covenant or condition contained in
any indenture, 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, in the case of (ii) above, for such defaults as would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect;
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(xiv) The statements set forth in the Pricing Prospectus and the Prospectuses
under the caption “Description of Capital Stock”, insofar as they purport to
constitute a summary of the terms of the Stock, under the caption “Material U.S.
Federal Tax Considerations for Non-U.S. Holders”, under the caption “Underwriting”
and, in the case of the Canadian Prospectus, under the captions “Certain Canadian
Federal Income Tax Consequences,” “Eligibility for Investment” and “Purchasers’
Statutory Rights,” insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate and fair descriptions or summaries
in all material respects;
(xv) Other than as set forth in the Pricing Prospectus and the Canadian
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,
reasonably be expected to have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xvi) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended
(the “Investment Company Act”);
(xvii) At the time of filing the Initial Registration Statement the Company was
not and is not an “ineligible issuer,” as defined under Rule 405 under the Act;
(xviii) PricewaterhouseCoopers 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
and are independent in accordance with the requirements of the U.S. Public Company
Accounting Oversight Board; PricewaterhouseCoopers LLP are also independent auditors
within the meaning of Canadian Securities Laws and Canadian generally accepted
accounting principles, and there has not been any disagreement (within the meaning
of Section 4.11 of National Instrument 51-102) with PricewaterhouseCoopers LLP with
respect to audits of the Company;
(xix) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to maintain
accountability for
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assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(xx) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act and in
Multilateral Instrument 52-109 — Certification of Disclosure in Issuers’ Annual and
Interim Filings) that complies 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.
Except as disclosed in the Pricing Prospectus and the Canadian Prospectus, the
Company’s internal control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over financial
reporting;
(xxi) Since the date of the latest audited financial statements included in the
Pricing Prospectus and the Canadian Prospectus, there has been no change in the
Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over
financial reporting;
(xxii) The Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act and in Multilateral Instrument
52-109 — Certification of Disclosure in Issuers’ Annual and Interim Filings) that
comply with the requirements of the Exchange Act and Canadian Securities Laws; 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; and such disclosure controls and procedures are effective;
(xxiii) The financial statements (including the related notes and any
supporting schedules) of the Company included in the Pricing Prospectus, the
Prospectuses and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the Company as of
the dates and for the periods indicated, comply as to form in all material respects
with the applicable accounting requirements of the Act and Canadian Securities Laws,
and have been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the selected financial data set forth under the
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caption “Selected Combined Consolidated Financial Data” in the Pricing
Prospectus, the Prospectuses and the Registration Statement fairly present in all
material respects, on the basis stated in the Pricing Prospectus, the Prospectuses
and the Registration Statement, the information included therein;
(xxiv) No material labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the Company’s knowledge, is threatened or imminent,
and the Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal suppliers that would
reasonably be expected to have a Material Adverse Effect;
(xxv) The Company has not taken and will not take, directly or indirectly, any
action which is designed to 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;
(xxvi) There are no business relationships, related-party transactions or
off-balance sheet transactions involving the Company or any of its subsidiaries or
any other person required to be described in the Registration Statement or the
Prospectuses which have not been described as required; and there are no contracts
or other documents that are required to be described in the Prospectuses or filed as
exhibits to the Registration Statement by the Act or the rules and regulations of
the Commission thereunder that have not been so described or so filed as exhibits;
(xxvii) Except as described in the Pricing Prospectus and the Canadian
Prospectus, there are no contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other like payment in
connection with this offering; and the Company has not sold or issued any Stock
during the six-month period preceding the date of the U.S. Prospectus, except as
described in Part II, Item 15 of the Registration Statement;
(xxviii) Except as described in the Prospectuses, there are no contracts,
agreements or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under the Act or
to file a prospectus under Canadian Securities Laws with respect to any securities
of the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the Registration
Statement, in the offering to which the Canadian Prospectus relates or in any
securities being registered pursuant to any other
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registration statement filed by the Company under the Act or otherwise under
Canadian Securities Laws. The holders of outstanding shares of the Company’s capital
stock are not and, upon the completion of the transactions contemplated by the
Reorganization Agreements, will not be, entitled to preemptive or other rights to
subscribe for the Stock, including after exercise or conversion of any security or
right to acquire any security;
(xxix) Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, employee or other person acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment;
(xxx) The Company and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, provincial, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license or approval,
except in each case where such failure to be in compliance or to obtain a permit,
license or approval would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xxxi) Except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the Company and its subsidiaries are in
compliance in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company would have any material liability; the
Company has not incurred and does not expect to incur material liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and
each “pension plan” for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code, has received a favorable
determination letter from the Internal Revenue Service and nothing has
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occurred, whether by action or by failure to act, which would reasonably be
expected to cause the loss of such qualification;
(xxxii) Except as described in the Pricing Prospectus and the Canadian
Prospectus, (i) the Company and each of its subsidiaries own, possess, license or
have other rights to use all patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property (collectively,
the “Intellectual Property”) necessary for the conduct of their respective
businesses as now conducted or as proposed in the Prospectuses to be conducted,
except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; (ii) to the Company’s knowledge, there are no rights
of third parties to any such Intellectual Property; (iii) to the Company’s
knowledge, there is no material infringement by third parties of any such
Intellectual Property; (iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s
rights in or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (v) to the Company’s
knowledge, there is no pending or threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such
claim; and (vi) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any of its
subsidiaries infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others, and the Company is unaware of any
other fact which would form a reasonable basis for any such claim;
(xxxiii) The Company and each of its subsidiaries have filed, or caused to be
filed, all federal, provincial, state, local, foreign income and franchise tax
returns required to be filed through the date hereof, subject to permitted
extensions, and have paid all taxes due thereon and have paid all withholding taxes,
other than those being contested in good faith and by appropriate proceedings for
which reserves have been established on the books and records of the Company and its
subsidiaries in accordance with generally accepted accounting principles in the
United States, except where the failure to file such returns or pay such taxes would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and no tax deficiency has been determined adversely to the Company
or any of its subsidiaries, nor does the Company have any knowledge of any tax
deficiency that has had or would have, individually or in the aggregate, a Material
Adverse Effect;
(xxxiv) The statistical and market-related data included in the Registration
Statement, the Pricing Prospectus and the Prospectuses are
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based on or derived from sources that are believed by the Company to be
reliable and accurate in all material respects, including data received from its
franchisees;
(xxxv) The Company and its subsidiaries are insured by insurers of recognized
financial responsibility in such amounts and covering such risks as are customary in
the businesses as now conducted or as proposed in the Prospectuses to be conducted;
all policies of insurance and fidelity or surety bonds insuring the Company or its
businesses, assets, employees, officers and directors are in full force and effect
in all material respects; the Company is in compliance with the terms of such
policies and instruments in all material respects; and the Company and its
subsidiaries have no reason to believe that they will not be able to renew their
existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue their business at a
cost that is not materially greater than the current cost. Neither the Company nor
any subsidiary has been denied any insurance coverage which it has sought or for
which it has applied;
(xxxvi) The Company’s Board of Directors has validly appointed an audit
committee whose composition satisfies the requirements of Rule 4350(d)(2) of NASDAQ
(taking into account the phase-in rules under Rule 4350(a) of NASDAQ) and the
requirements of Multilateral Instrument 52-110 — Audit Committees and the Board of
Directors and/or the audit committee has adopted a charter that satisfies the
requirements of Rule 4350(d)(2). The audit committee has reviewed the adequacy of
its charter within the past twelve months;
(xxxvii) Except as described in the Pricing Prospectus and such as were repaid
in full prior to the filing of the Initial Registration Statement, the Company has
not, directly or indirectly, including through any subsidiary, extended or
maintained credit, or arranged for the extension of credit, or renewed any extension
of credit, in the form of a personal loan to or for any of its directors or
executive officers;
(xxxviii) Except as disclosed in the Pricing Prospectus and the Prospectuses,
the Company and its subsidiaries are in compliance with the applicable requirements
of the Federal Trade Commission rules governing franchising and applicable
provisions of federal, provincial, state or local laws or regulations governing the
business of a franchise or that are applicable to their business as presently
conducted, except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xxxix) There is and has been no failure on the part of the Company and any of
the Company’s officers or directors, in their capacities as such, to comply in all
material respects with any applicable
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provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith that are applicable to the Company as of the
date hereof; and
(xl) Neither the Company nor any of its Subsidiaries has debt securities or
preferred stock that are rated by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act.
(b) Each of the Selling Stockholders severally but not jointly represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this Agreement and the Power
of Attorney and the Custody Agreement hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Stockholder hereunder, have been
obtained; and such Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(ii) 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 (as defined below) and the Custody Agreement (as
defined below) and the consummation 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 statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument 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,
except for any such conflicts, violations, breaches and defaults that would not,
individually, or in the aggregate, affect the ability of such Selling Stockholder to
consummate the transactions herein contemplated; nor will such action result in any
violation of the provisions of (i) the Certificate of Incorporation or By laws of
such Selling Stockholder if such Selling Stockholder is a corporation, the
Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a
partnership, or (ii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder, except (in the case of this clause (ii)) for
any such conflicts, violations, breaches and defaults that would not, individually,
or in the aggregate, affect the ability of such Selling Stockholder to consummate
the transactions herein contemplated;
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(iii) Such Selling Stockholder holds or, immediately after giving effect to the
Reorganization, will hold and immediately prior to each Time of Delivery (as defined
in Section 4 hereof) such Selling Stockholder will hold, the Shares to be sold by
such Selling Stockholder hereunder free of any “adverse claim” (within the meaning
of Section 8-105 of the Uniform Commercial Code as in effect in the State of New
York (the “New York UCC”)); and upon payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed
by the Underwriters, to the Depository Trust Company (“DTC”) or its agent,
registration of such Shares in the name of Cede & Co. (“Cede”) or such other nominee
as may be designated by DTC and the crediting of such Shares on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any “adverse claim” (within the meaning of Section 8-105
of the New York UCC) to such Shares), (A) DTC will be a “protected purchaser” of
such Shares within the meaning of Xxxxxxx 0-000 xx xxx Xxx Xxxx XXX, (X) under
Section 8-501 of the New York UCC, the Underwriters will acquire a valid security
entitlement with respect to such Shares and (C) no action based on an “adverse
claim,” within the meaning of Section 8-102 of the New York UCC, to such Shares may
be asserted against the Underwriters with respect to such security entitlement;
(iv) Such Selling Stockholder has executed a lock-up agreement, by and among
such Selling Stockholder and the Representatives, in the form as indicated in Annex
III hereto (each, a “Lock-Up Agreement”);
(v) Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to 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;
(vi) Except as described in the Pricing Prospectus and the Canadian Prospectus,
there are no contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim against such
Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or
other like payment in connection with this offering;
(vii) To the extent that any statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectuses or any amendment or
supplement thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder expressly for use
therein, the Registration Statement conforms, and the Prospectuses and any further
amendments or supplements to the Registration Statement and the Prospectuses will
-16-
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and the requirements of Canadian
Securities Laws, as applicable, and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and any amendment or
supplement thereto and as of the applicable filing date as to the U.S. 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; the Canadian Prospectus and any
amendment or supplement thereto, as of the applicable filing date, is and will be
true and correct in all material respects and contains no misrepresentation (as that
term is defined under Canadian Securities Laws), constitutes and will constitute
full, true and plain disclosure of all material facts relating to the Company and
its subsidiaries and the Shares as required by Canadian Securities Laws and no
material fact or information has been omitted therefrom which is required to be
stated therein or is necessary to make the statements or information therein not
false or misleading in light of the circumstances in which they were made, in each
case within the meaning of Canadian Securities Laws;
(viii) In order to document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions herein contemplated, such Selling Stockholder will
deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department Form W-9 or W-8BEN
(or other applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(ix) Certificates in negotiable form representing all of the Shares to be sold
by such Selling Stockholder hereunder have been placed in custody under a Custody
Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly
executed and delivered by such Selling Stockholder to Computershare, Inc., as
custodian (the “Custodian”), and such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you (the “Power
of Attorney”), appointing the persons indicated in Schedule II hereto, and each of
them, as such Selling Stockholder’s attorneys in fact (the “Attorneys 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 in Section 2 hereof, 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; and
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(x) The Shares represented by the certificates held in custody for such Selling
Stockholder under the Custody Agreement are subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the Attorneys in Fact by
the Power of Attorney, are to that extent irrevocable; the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law, whether
by the death or incapacity of 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 or corporation,
by the dissolution of such partnership or corporation, 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 or corporation should be dissolved, or if any
other such event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of the
Selling Stockholders in accordance with the terms and conditions of this Agreement
and of the Custody Agreements; 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.
(xi) Except as indicated on Schedule VI hereto, such Selling Stockholder is, if
a natural person, a resident of the United States of America, and if a legal person,
organized under the laws of the United States of America or a state or subdivision
thereof.
2. Subject to the terms and conditions herein set forth, (a) the Company and each of the
Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each
of the Selling Stockholders, at a purchase price per share of $[___], the number of Firm Shares
(to be adjusted by you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Firm Shares to be sold by the Company and each of the Selling Stockholders as
set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company and all
of the Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares as provided below, each of the Selling
Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders,
at the purchase price per share set forth in clause (a) of this Section 2,
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that portion of the number of Optional 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 Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the maximum number of
Optional Shares that all of the Underwriters are entitled to purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant,
severally and not jointly, to the Underwriters the right to purchase at their election up to
[___] Optional Shares, at the purchase price per share set forth in the paragraph above, for the
sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the
purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not payable on the
Optional Shares. Any such election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by each Selling Stockholder as set forth in Schedule
II hereto. Any such election to purchase Optional Shares may be exercised only by written notice
from you to the Attorneys in Fact, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Attorneys in
Fact otherwise agree in writing, earlier than two or later than ten business days after the date of
such notice.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectuses.
4. (a) The Shares to be purchased by each Underwriter hereunder shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Xxxxx & Co. for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of same-day funds to the accounts specified by the Company and the Custodian to
Xxxxxxx, Sachs & Co. at least forty-eight hours in advance by causing DTC to credit securities
entitlements with respect to the Shares to the securities account of Xxxxxxx, Xxxxx & Co. at DTC.
The time and date of such delivery and payment shall be, with respect to the Firm Shares, 8:30
a.m., New York City time, on [___], 2007 or such other time and date as Xxxxxxx, Sachs & Co.,
the Company and the Selling Stockholders may agree upon in writing, and, with respect to the
Optional Shares, 8:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in
the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters’ election to purchase such
Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co., the Company and the Selling
Stockholders may agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the “First Time of Delivery”, such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the “Second Time of Delivery”,
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and each such time and date for delivery is herein called a “Time of Delivery”. Time shall be
of the essence, and crediting of security entitlements as and when specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter hereunder.
(b) The documents to be delivered at each 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 requested by the Underwriters pursuant to Section 8(q) hereof, will
be delivered at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the “Closing Location”), and the Shares will be delivered at the
office of DTC or its designated custodian, all at such Time of Delivery. A meeting will be
held at the Closing Location at [___] p.m., New York City time, on the New York Business
Day next preceding such 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. For the purposes of this Agreement, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City or Vancouver are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the U.S. Prospectus and supplemented Canadian Prospectus in forms
approved by you and to file such U.S. 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 by Rule 430A(a)(3) under the Act, and to file such supplemented Canadian Prospectus
(containing the PREP information) in accordance with the PREP Procedures with each of the
Canadian Securities Regulatory Authorities as soon as possible and in any event not later
than such Canadian Securities Regulatory Authorities’ close of business on the second
business day following the execution and delivery of this Agreement and to take all other
steps and proceedings that may be necessary to qualify the Shares for distribution and sale
to the public in each of the Canadian Qualifying Jurisdictions through investment dealers or
brokers registered under the applicable laws of such jurisdictions who have complied with
the relevant provisions of such applicable laws; to make no further amendment or any
supplement to the Registration Statement, U.S. Prospectus or Canadian Prospectus prior to
the last Time of Delivery which shall be disapproved by you promptly after reasonable notice
thereof; 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 amendment
or supplement to the U.S. Prospectus or Canadian Prospectus or any amended U.S. Prospectus
or Canadian Prospectus has been filed and to furnish you copies thereof (including, in the
case of any supplemented or amended Canadian Prospectus, in the English and French
languages) and to deliver to the Underwriters all signed and
-20-
certified copies of any such supplemented or amended Canadian Prospectus in the English
and French languages along with all documents similar to those referred to in subsections
5(b)(i), (ii), (iii) and (iv) and such other documents as the Underwriters may reasonably
request; to file promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission or any of the Canadian Securities
Regulatory Authorities 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, of any written
communication received by the Company from any Canadian Securities Regulatory Authority, the
TSX or any governmental authority or of any request by the Commission or any of the Canadian
Securities Regulatory Authorities for the amending or supplementing of the Registration
Statement, U.S. Prospectus or Canadian Prospectus, as applicable, 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 ceasing or
suspending the distribution of the Shares or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order;
(b) To deliver to the Underwriters contemporaneously, as nearly as practicable, with
the execution and delivery of this Agreement: (i) a copy of the Canadian Preliminary
Prospectus and the Canadian Prospectus in each of the French and English language signed and
certified as required by Canadian Securities Laws in each of the Canadian Qualifying
Jurisdictions; (ii) a copy of all such documents and certificates that were filed with the
Canadian Preliminary Prospectus and the Canadian Prospectus under Canadian Securities Laws;
(iii) an opinion of the auditors of the Company, PricewaterhouseCoopers LLP, addressed to
the Underwriters and their counsel, in form and substance satisfactory to the Underwriters
and their counsel, to the effect that the French language version of the following sections
of the Canadian Preliminary Prospectus and the Canadian Prospectus: (A) “Summary Combined
Consolidated Financial Information”, appearing in the Prospectus Summary; (B)
“Capitalization”; (C) “Selected Combined Consolidated Financial Data”; (D) “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”; (E) Auditor’s
Consent of PricewaterhouseCoopers LLP; (F) Index to Combined Consolidated Financial
Statements; and (G) combined consolidated financial statements as at April 30, 2007, January
31, 2007 and January 31, 2006 and for the three months ended April 30, 2007 and the three
years ended January 31, 2007 of the Lululemon group of companies (as defined in note 1
thereto), together with the notes thereto, audited as at January 31, 2007 and January 31,
2006 and for the three years ended January 31, 2007, and the Report of Independent
Registered Public Accounting Firm thereon; (all of the foregoing collectively referred to as
the “Financial Information”) are, in each case, in all material respects a complete and
proper translation of the English language version thereof; (iv) an opinion of XxXxxxxx
Xxxxxxxx LLP addressed to the
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Underwriters and their counsel in form and substance satisfactory to the Underwriters
and their counsel, to the effect that, except for the Financial Information, the French
language version of each of the Canadian Preliminary Prospectus and the Canadian Prospectus
is in all material respects a complete and accurate translation of the English language
version thereof; and (v) a letter from the TSX advising the Company that approval of the
conditional listing of the Shares has been granted by the TSX. The deliveries set forth in
(i) shall also constitute the Company’s consent to the Underwriters’ use of the Canadian
Prospectus for the distribution of the Shares in the Canadian Qualifying Jurisdictions in
compliance with the provisions of this Agreement;
(c) 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 such jurisdiction;
(d) Prior to 9:00 a.m., New York City time, on the second New York Business Day
following the date of this Agreement and from time to time, to furnish the Underwriters with
written and electronic copies of the U.S. Prospectus in New York City and, prior to 9:00
a.m., New York City time, on the second New York Business Day following the date of this
Agreement and from time to time, to furnish the Underwriters with written and electronic
copies of the Canadian Prospectus in the English and French languages in Toronto, each in
such quantities as you may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time
prior to (with respect to the U.S. Prospectus) the expiration of nine months after the time
of issue of the U.S. Prospectus in connection with the offering or sale of the Shares and
the completion of the distribution of such Shares or (with respect to the Canadian
Prospectus) the completion of the distribution of such Shares, and if at such time (i) any
event shall have occurred as a result of which the Prospectuses as then amended or
supplemented (a) 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 Prospectuses (or in lieu thereof, as
applicable, the notice referred to in Rule 173(a) under the Act) are delivered, not false or
misleading, or (b) would render the Prospectuses or any supplement or amendment thereto
misleading or untrue in whole or in part or would result in a misrepresentation (as such
term is defined under Canadian Securities Laws), or (ii) if for any other reason it shall be
necessary during such same period to amend or supplement the U.S. Prospectus or Canadian
Prospectus in order to comply with the Act or Canadian Securities Laws, as applicable, to
notify you and upon your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and
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electronic copies as you may from time to time reasonably request of an amended U.S.
Prospectus or Canadian Prospectus (in the English and French languages), as the case may be,
or a supplement to the U.S. Prospectus or Canadian Prospectus (in the case of a supplement
to the Canadian Prospectus, in the English and French languages), as the case may be, which
will correct such statement or omission or effect such compliance. 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 Prospectuses, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and electronic
copies as you may request of an amended or supplemented U.S. Prospectus complying with
Section 10(a)(3) of the Act or an amended or supplemented Canadian Prospectus in the English
and French languages and complying with Canadian Securities Laws;
(e) To promptly (and in any event within any applicable time limitation) comply with
all legal requirements under the Act, Canadian Securities Laws, and the rules and by-laws
governing the NASDAQ and TSX required as a result of an event described in Section 5(d) in
order to continue to qualify the distribution of the Shares in each of the Canadian
Qualifying Jurisdictions and the offering of the Shares in the United States pursuant to
this Agreement, including the prospectus amendment provisions of Canadian Securities Laws,
and to prepare and file to the satisfaction of the Underwriters any amendment or supplement
to the Registration Statement, U.S. Prospectus and Canadian Prospectus which, in the opinion
of the Underwriters, may be necessary or advisable. In addition to the provisions of Section
5(d) above, the Company will, in good faith, discuss with the Underwriters any change, event
or fact contemplated in Section 5(d) which is of such a nature that there may be reasonable
doubt as to whether notice should be given to the Underwriters under Section 5(d) and will
consult with the Underwriters with respect to the form and content of any such supplement or
amendment proposed to be filed by the Company, it being understood and agreed that no such
supplement or amendment will be filed with the Commission or any Canadian Securities
Regulatory Authority prior to the review and approval by the Underwriters and their counsel.
The Company shall also cooperate in all respects with the Underwriters and their counsel to
allow and assist the Underwriters to participate in the preparation of any such supplement
or amendment and to conduct all due diligence investigations which the Underwriters deem
appropriate in order to fulfill their obligations as underwriters and to enable the
Underwriters to responsibly execute any certificate related to such supplement or amendment
required to be executed by them;
(f) To make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings 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);
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(g) During the period beginning from the date hereof and continuing to and including
the date one hundred, eighty (180) days after the date of the Prospectus (the initial
“Lock-Up Period”), not to offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Shares, including but not
limited to any options or warrants to purchase shares of Stock or any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than upon the conversion or exchange of
convertible or exchangeable securities outstanding as of the date of this Agreement or
immediately after giving effect to the Reorganization), 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 & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated waive, in writing, such
extension; the Company will provide Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and each stockholder subject to the Lock-Up Period pursuant to the
lock-up letters described in Section 1(b)(iv) and Section 8(l) with prior notice of any such
announcement that gives rise to an extension of the Lock-up Period; provided, however, that
the restrictions in this Section 5(g) shall not apply to (i) the issuance and sale of the
Shares to be sold by the Company pursuant to this Agreement, (ii) the issuance by the
Company of Stock, or the grant by the Company of options, warrants or other rights with
respect to shares of Stock pursuant to employee benefit plans disclosed in the Pricing
Prospectus and the Prospectuses and authorized for issuance thereunder as of the date
hereof, (iii) the filing of any registration statement on Form S-8 relating to the offering
of Stock described in the foregoing clause (ii) pursuant to employee benefit plans disclosed
in the Pricing Prospectus and the Prospectuses, (iv) the issuance by the Company of shares
of Stock pursuant to the exchange of securities issued in connection with the Reorganization
and (v) the filing of any registration statement in connection with the issuance (but not
the resale) of common stock upon the exchange of shares described in the foregoing clause
(iv);
(h) To furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries for such
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quarter in reasonable detail, provided that the Company may, subject to applicable
laws, satisfy each of the requirements of this subsection by making any such reports or
other communications generally available on its website or by electronically filing such
information with the Commission;
(i) During a period of three years from the effective date of the Registration
Statement, to furnish to you copies of all reports or other communications (financial or
other) furnished to stockholders, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the Commission or
any Canadian Securities Regulatory Authority or any national securities exchange on which
any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission or any Canadian Securities Regulatory
Authority), provided that the Company may satisfy each of the requirements of this
subsection by making any such reports or other communications generally available on its
website or by electronically filing such information with the Commission;
(j) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Canadian Prospectus
under the caption “Use of Proceeds”; and
(k) To use its best efforts to list, subject to notice of issuance, the Shares on the
NASDAQ and to conditionally list the shares on the TSX;
(l) To file with the Commission such information on Form 10-Q or Form 10-K as may be
required by Rule 463 under the Act;
(m) If the Company elects to rely upon Rule 462(b), 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
(n) Upon request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate
logo for use on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Shares (the “License”); provided, however, that the
License shall be used solely for the purpose described above, is granted without any fee and
may not be assigned or transferred.
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6. (a) The Company and each Selling Stockholder represents and agrees that, without the prior
consent of Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, it has not
made and will not make any offer relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that,
without the prior consent of the Company and Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, it has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus; any such free writing prospectus the use of which has been
consented to by the Company and Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated is listed on Schedule III(a) or Schedule III(b) hereto;
(b) 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 the Company represents that it has
satisfied and agrees that it will satisfy the conditions under Rule 433 under the Act to
avoid a requirement to file with the Commission any electronic road show;
(c) 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 Prospectuses or 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 then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives, will prepare
and furnish without charge to each Underwriter 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 an Underwriter through the Representatives expressly for use
therein.
7. (a) The Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants and counsel for the Selling Stockholders in connection with the
registration of the Shares under the Act, the qualification of the Shares for distribution by
prospectus under Canadian Securities Laws and all other expenses in connection with the
preparation, printing, reproduction and filing of the Registration Statement, any U.S. Preliminary
Prospectus, any Canadian Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectuses and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the
-26-
offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as provided in
Section 5(c) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv)
all fees and expenses in connection with listing the Shares on the TSX and NASDAQ; (v) 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; (vi) the cost of preparing stock certificates; (vii)
the cost and charges of any transfer agent or registrar; (viii) all taxes arising as a result of
the sale and delivery of the Shares by the Company to or for the account of the Underwriters,
including any Canadian withholding, transfer or other tax asserted against an Underwriter by reason
of the purchase and sale of a Share pursuant to this Agreement; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section;
(b) Each Selling Stockholder covenants and agrees with the several Underwriters that
such Selling Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder’s obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) such Selling Stockholder’s pro rata
share of the fees and expenses of the Attorneys in Fact and the Custodian, and (ii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by such
Selling Stockholder to the Underwriters hereunder. In connection with clause (b)(ii) of the
preceding sentence, the Underwriters agree to pay New York State stock transfer tax, and the
Selling Stockholder agrees to reimburse the Underwriters for associated carrying costs if
such tax payment is not rebated on the day of payment and for any portion of such tax
payment not rebated;
(c) 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 relating to the sale and purchase of the Shares pursuant to this
Agreement, and that, except as provided in this Section, Section 9 and Section 12 hereof,
the Underwriters will pay all of their own costs and expenses, including the fees of their
counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make and that the Company and the Underwriters
shall each bear their proportional share of the costs associated with any chartered aircraft
used in connection with the roadshow (such proportional share to be determined on the basis
of the relative number of passengers on such aircraft associated with the Underwriters and
with the Company).
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, 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 such Time of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of
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its and their obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The U.S. Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act 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 filing by
Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, 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; the supplemented Canadian Prospectus shall have been filed with
the Canadian Securities Regulatory Authorities in accordance with Section 5(a) hereof; 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
threatened by the Commission; no stop order suspending or preventing the use of the U.S.
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by
the Commission; no order having the effect of ceasing or suspending the distribution of the
Shares shall have been issued and no proceeding for that purpose shall have been initiated
or threatened by any Canadian Securities Regulatory Authority or the TSX; and all requests
for additional information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
(b) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished
to you such written opinion or opinions, dated such Time of Delivery, in form and substance
satisfactory to you, 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) Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of Delivery, in form and
substance satisfactory to you, 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;
(d) Xxxxxx Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their
written opinion dated such Time of Delivery, in form and substance satisfactory to you, with
respect to the matters set forth in Annex II(a) hereto;
(e) XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Company, shall have furnished to
you their written opinion dated such Time of Delivery, in form
-28-
and substance satisfactory to you, with respect to the matters set forth in Annex II(b)
hereto;
(f) The respective counsel for each of the Selling Stockholders, as indicated in
Schedule II hereto, shall have furnished to you their written opinion with respect to each
of the Selling Stockholders for whom they are acting as counsel dated such Time of Delivery,
in form and substance satisfactory to you, with respect to the matters set forth in Annex
II(c) hereto;
(g) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:00 a.m., New York City time, on the effective date of any post effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at each
Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance satisfactory
to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries, when taken as a whole, shall
have sustained since the date of the latest audited financial statements included in the
Pricing Prospectus and the Canadian 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, order or decree, otherwise than as set
forth or contemplated in the Pricing Prospectus and the Canadian Prospectus, and (ii) since
the respective dates as of which information is given in the Pricing Prospectus and the
Canadian Prospectus there shall not have been any change in the capital stock or long term
debt of the Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries, when
taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus and
the Canadian Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in your judgment so material and adverse to the Company and its subsidiaries, taken
as a whole, as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectuses; provided, however, that in no event shall
clause (ii) include any change in the capital stock of the Company as a result of the
transactions contemplated by the Reorganization Agreements and described in the Prospectus;
(i) [reserved];
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(j) 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 NASDAQ or
TSX; (ii) a suspension or material limitation in trading in the Company’s securities on the
NASDAQ or TSX; (iii) a general moratorium on commercial banking activities in the United
States or Canada declared by relevant authorities, or a material disruption in commercial
banking or securities settlement or clearance services in the United States or Canada; (iv)
the outbreak or escalation of hostilities involving the United States or Canada or the
declaration by the United States or Canada 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 in the United States, Canada or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectuses;
(k) The Shares to be sold at such Time of Delivery shall have been duly listed, subject
to notice of issuance, on NASDAQ and conditionally approved for listing on the TSX;
(l) The Company shall have obtained and delivered to the Underwriters executed Lock-Up
Agreements from each person set forth on Schedule V hereto;
(m) Contemporaneously with the execution of this Agreement, the Secretary of the
Company shall have delivered to the Underwriters a certification, in a form satisfactory to
the Underwriters, to the effect that persons identified on Schedule V hereto constitute all
of the Company’s officers, directors, stockholders and optionholders as of the date hereof
and the Secretary (or other appropriate officer) of each of Lululemon Athletica USA, Inc.,
lululemon canada, inc., LIPO Investments (USA), Inc. and LIPO Investments (Canada), Inc.
shall have delivered to the Underwriters a certification, in a form satisfactory to the
Underwriters, to the effect that persons identified on Schedule V hereto constitute all of
the stockholders and optionholders of Lululemon Athletica USA, Inc., lululemon canada, inc.,
LIPO Investments (USA), Inc. and LIPO Investments (Canada), Inc., respectively;
(n) The Company shall have complied with the provisions of Section 5(d) hereof with
respect to the furnishing of prospectuses on the second New York Business Day following the
date of this Agreement;
(o) The transactions contemplated by Reorganization Agreements shall have been
completed;
(p) The Company shall have furnished contemporaneously, as nearly as practicable, with
the execution and delivery of this Agreement, the documents and opinions set forth in
Section 5(b); and
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(q) The Company and the Selling Stockholders shall have furnished or caused to be
furnished to you at such 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 such 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 such Time of Delivery, and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (h) of this Section.
9. (a) The Company, Xxxxxx Xxxxxx and Slinky Financial ULC (together with Xxxxxx Xxxxxx, the
“Insider Selling Stockholders”), jointly and severally, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act, Canadian Securities Laws 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 in the
Registration Statement, any U.S. Preliminary Prospectus or Canadian Preliminary Prospectus, the
Pricing Prospectus or the Prospectuses, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Act, 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, or arise out of or are based upon a misrepresentation or alleged misrepresentation
within the meaning of Canadian Securities Laws, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that the
Company and the Insider Selling Stockholders shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission, or misrepresentation or alleged
misrepresentation within the meaning of Canadian Securities Laws, made in the Registration
Statement, any U.S. Preliminary Prospectus or Canadian Preliminary Prospectus, the Pricing
Prospectus or the Prospectuses, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and provided further, that
(i) the liability of the Insider Selling Stockholders pursuant to this subsection (a) shall not
exceed the product of the number of Shares sold by the Insider Selling Stockholders (including
Optional Shares) and the initial public offering price of the Shares as set forth in the Prospectus
(less any applicable underwriting discount), and (ii) and the Underwriters shall have first made
demand for payment of any amounts due under this subsection (a) against the Company and the Company
shall not have made payment of all of such amounts within 90 days following such demand prior to
making any demand for payment against the Insider Selling Stockholders.
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(b) Each of the Selling Stockholders, severally and not jointly, will indemnify and
hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act, Canadian Securities
Laws 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 in the Registration Statement, any U.S. Preliminary
Prospectus or Canadian Preliminary Prospectus, the Pricing Prospectus or the Prospectuses,
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, or
arise out of or are based upon a misrepresentation or alleged misrepresentation within the
meaning of Canadian Securities Laws, 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, any U.S. Preliminary Prospectus or Canadian Preliminary
Prospectus, the Pricing Prospectus or the Prospectuses, or any 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 Selling Stockholder expressly for use
therein; and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that such Selling Stockholder
shall not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission, or misrepresentation or alleged misrepresentation within the
meaning of Canadian Securities Laws, made in the Registration Statement, any U.S.
Preliminary Prospectus or Canadian Preliminary Prospectus, the Pricing Prospectus or the
Prospectuses, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and provided further,
that the liability of a Selling Stockholder pursuant to this subsection (b) shall not exceed
the product of the number of Shares sold by such Selling Stockholder (including Optional
Shares) and the initial public offering price of the Shares as set forth in the Prospectus.
(c) 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, Canadian Securities Laws 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 in the Registration Statement, any U.S. Preliminary Prospectus or
Canadian Preliminary Prospectus, the Pricing Prospectus or the Prospectuses, 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
-32-
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based upon a misrepresentation or
alleged misrepresentation within the meaning of Canadian Securities Laws, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission, or misrepresentation or alleged misrepresentation within
the meaning of Canadian Securities Laws, was made in the Registration Statement, any U.S.
Preliminary Prospectus or Canadian Preliminary Prospectus, the Pricing Prospectus or the
Prospectuses, or any 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 & Co. expressly for use therein; and will reimburse the
Company and such 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; and will reimburse the Company and such
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.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c)
above of notice of the commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof (each such notice to
the indemnifying party, a “Notice”); 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. 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 (who shall
not, except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party 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 other than reasonable costs of investigation. 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
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to act, by or on behalf of any indemnified party. The Company shall not be required to
indemnify the Underwriters for any amount paid or payable by the Underwriters in the
settlement of any action, proceeding or investigation without the written consent of the
Company, which consent shall not be unreasonably withheld or delayed.
(e) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company, Xxxxxx Xxxxxx and the Selling Stockholders on the one hand
and the Underwriters on the other from the offering of the Shares (it
being understood that the proceeds received by Slinky Financial ULC
for the sale of shares hereunder constitute all the benefits received
by Xxxxxx Xxxxxx and Slinky Financial ULC from the offering of the
Shares). If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the Notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company, Xxxxxx Xxxxxx and the Selling
Stockholders on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, Xxxxxx Xxxxxx and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the
Company, Xxxxxx Xxxxxx and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectuses. The relative fault shall be determined by reference to,
among other things, whether the misrepresentation or alleged misrepresentation, 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, Xxxxxx Xxxxxx or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, Xxxxxx Xxxxxx, each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the
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provisions of this subsection (e), (i) 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, (ii) the Insider Selling
Stockholders shall not be required to contribute, in respect of any liability pursuant
Section 9(a) but not Section 9(b) hereof, any amount in excess of the product of the number
of Shares sold by the Insider Selling Stockholders (including Optional Shares) and the
initial public offering price of the Shares as set forth in the Prospectus (less any
applicable underwriting discount) and (iii) no Selling Stockholder shall be required to
contribute (other than in respect of any liability pursuant to Section 9(a)) any amount in
excess of the product of the number of Shares sold by such Selling Stockholder (including
Optional Shares) and the initial public offering price of the Shares as set forth in the
Prospectus. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting obligations and not
joint.
(f) The obligations of the Company and the Selling Stockholders under this Section 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 each
broker-dealer affiliate of any Underwriter and each of their respective directors, officers,
employees and agents; 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 a 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 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 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 such Time of Delivery for a period
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of not more than seven days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectuses, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to the Registration Statement or
the Prospectuses which in your opinion may thereby be made necessary. The term “Underwriter” as
used in this Agreement shall include any person substituted under this Section 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 the Shares to be
purchased at such 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 such 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 the Shares to be purchased
at such 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 (or, with
respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and
of the Company and the Selling Stockholders to sell the Optional Shares) 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 Section 7 hereof, the indemnity and
contribution agreements in Section 9; 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, Xxxxxx Xxxxxx, 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 Xxxxxx Xxxxxx or any of the Selling Stockholders, or any officer or
director or controlling
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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 Section 7 and Section 9 hereof; but, if for any other reason, any Shares are not
delivered by or on behalf of the Company and the Selling Stockholders as provided herein, the
Company 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 shall then be under no further liability to any Underwriter in respect
of the Shares not so delivered except as provided in Section 7 and Section 9 hereof.
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 & Co. and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on behalf of you as the Representatives; 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 Attorneys in Fact for such Selling Stockholder.
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 as the
Representatives in care of Xxxxxxx, Sachs & Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department; 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; if to Xxxxxx Xxxxxx shall be delivered or sent by mail, telex or
facsimile transmission to the address set forth in Schedule V 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; provided, however, that any notice to an
Underwriter pursuant to Section 9(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the Company, Xxxxxx Xxxxxx
or the Selling Stockholders by you upon request; provided, however, that notices under Section
1(b)(iv) or Section 5(g) or under the agreements contemplated by Section 8(l) shall be in writing,
and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to
you as the Representatives at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Control Room, and if to counterparties of the Representatives to the agreements
contemplated by Section 8(l), shall be delivered or sent by mail, telex or facsimile transmission
to such person as set forth in Schedule V hereto. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
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14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, Xxxxxx Xxxxxx and the Selling Stockholders and, to the extent provided
in Section 9 and Section 11 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.
15. 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. As used
herein, the term “New York Business Day” shall have the meaning ascribed to such term in Section
4(b) hereof.
16. The Company, Xxxxxx Xxxxxx and each Selling Stockholder acknowledges and agrees that (i)
the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial
transaction between the Company, Xxxxxx Xxxxxx and the Selling Stockholders, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with the process leading
to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary
of the Company, Xxxxxx Xxxxxx or any Selling Stockholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company, Xxxxxx Xxxxxx or any Selling
Stockholder with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company, Xxxxxx
Xxxxxx or any Selling Stockholder on other matters) or any other obligation to the Company, Xxxxxx
Xxxxxx or any Selling Stockholder except the obligations expressly set forth in this Agreement and
(iv) the Company, Xxxxxx Xxxxxx and the Selling Stockholders have consulted their own legal and
financial advisors to the extent they deemed appropriate. The Company, Xxxxxx Xxxxxx and each
Selling Stockholder agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Company, Xxxxxx Xxxxxx or such Selling Stockholder, in connection with such transaction or the
process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, Xxxxxx Xxxxxx, the Selling Stockholders and the Underwriters, or any of
them, with respect to the subject matter hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. Each of the parties hereto submits to the jurisdiction of the courts of the State of New
York and the courts of the United States of America located in the State of New York over any suit,
action or proceeding with respect to this Agreement or the transactions contemplated hereby. Any
suit, action or proceeding with respect to this Agreement may be brought only in the courts of the
State of New York or the courts of
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the United States of America, in each case located in the Borough of Manhattan, City of New
York, State of New York. Each of the parties hereto waives any objection that it may have to the
venue of such suit, action or proceeding in any such court or that such suit, action or proceeding
in such court was brought in an inconvenient forum and agrees not to plead or claim the same. Each
party identified in Schedule VI hereby appoints [ ] as its agent for service of
process for purposes of this Section 19 only.
20. The Company, Xxxxxx Xxxxxx, each Selling Stockholder and each of the Underwriters hereby
irrevocably waives, 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.
21. 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.
22. Notwithstanding anything herein to the contrary, the Company, Xxxxxx Xxxxxx 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, Xxxxxx Xxxxxx 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.
If the foregoing is in accordance with your understanding, please sign and return to us nine
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, Xxxxxx Xxxxxx 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, Xxxxxx Xxxxxx and the Selling Stockholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
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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, | ||||
| lululemon athletica inc. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Xxxxxx Xxxxxx | ||||
| By: | ||||
| Each of the Selling Stockholders | ||||
| named in Schedule II hereto | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| 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 & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Company, LLC
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
UBS Securities LLC
Wachovia Capital Markets, LLC
Xxxxxx Xxxxxx Partners LLC
Incorporated
Xxxxxxx Xxxxx & Company, LLC
CIBC World Markets Corp.
Credit Suisse Securities (USA) LLC
UBS Securities LLC
Wachovia Capital Markets, LLC
Xxxxxx Xxxxxx Partners LLC
By:
|
||||
| (Xxxxxxx, Sachs & Co.) |
On behalf of each of the Underwriters
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