3,187,351 Shares MAIDENFORM BRANDS, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
3,187,351
Shares
Common
Stock
March
11, 2010
Barclays
Capital Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Ares
Corporate Opportunities Fund, L.P. (the “Selling Stockholder”),
proposes to sell 3,187,351 shares (the “Stock”) of the common stock,
par value $0.01 per share (the “Common Stock”), of Maidenform
Brands, Inc., a Delaware corporation (the “Company”). This
agreement (the “Agreement”) is to confirm the
agreement concerning, and the terms and conditions of, the purchase of the Stock
from the Selling Stockholder by Barclays Capital Inc. (the “Underwriter”). The
offering of the Stock upon the terms hereof is herein referred to as the “Offering.”
1.
Representations,
Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A
registration statement on Form S-3 relating to the Stock has (i) been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the “Securities Act”), and the
rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder;
(ii) been filed with the Commission under the Securities Act; and
(iii) become effective under the Securities Act. Copies of such
registration statement and any amendment thereto have been delivered by the
Company to the Underwriter. As used in this Agreement:
(i) “Applicable Time” means 9:00
a.m. (New York City time) on March 11, 2010;
(ii) “Effective Date” means any date
as of which any part of such registration statement relating to the Stock
became, or is deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iii) “Issuer Free Writing
Prospectus” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations), if any, prepared by or on behalf of the Company
or used or referred to by the Company in connection with the offering of the
Stock;
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(iv) “Base Prospectus” means the
base prospectus, dated September 27, 2010, included in the Registration
Statement at the time the Registration Statement became effective under the
Securities Act or subsequently filed with the Commission on or prior to the date
of this Agreement;
(v) “Pricing Disclosure Package”
means, as of the Applicable Time, the most recent Base Prospectus, together with
the information included in Schedule 1 hereto and
each Issuer Free Writing Prospectus, if any, filed or used by the Company on or
before the Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and Regulations;
(vi) “Prospectus” means the final
prospectus relating to the Stock, including any prospectus supplement thereto
relating to the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “Registration Statement” means,
collectively, the various parts of such registration statement, each as amended
as of the Effective Date for such part, including the Prospectus and all
exhibits to such registration statement.
(viii) “Selling Stockholder
Information” means the name of the Selling Stockholder, the number of
shares of Stock to be sold by the Selling Stockholder and other information with
respect to the Selling Stockholder (excluding any percentages) which appears
under the caption “Selling Stockholder” in the Prospectus and under the caption
“Ownership of Securities” and in the Company’s definitive proxy statement on
Schedule 14A filed with the Commission on April 22, 2010.
Any
reference to any Base Prospectus or the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Form S-3
under the Securities Act as of the date of such Base Prospectus or the
Prospectus, as the case may be. Any reference to the “most recent Base Prospectus”
shall be deemed to refer to the latest Base Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) prior to or at the
Applicable Time (including, for purposes hereof, any documents incorporated by
reference therein prior to or at the Applicable Time). Any reference
to any amendment or supplement to any Base Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), after the date
of such Base Prospectus or the Prospectus, as the case may be, and incorporated
by reference in such Base Prospectus or the Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration Statement. Any
reference herein to the term “Registration Statement” shall be deemed to include
any abbreviated registration statement to register additional shares of Common
Stock under Rule 462(b) of the Rules and Regulations (the “Rule 462(b) Registration
Statement”). The Commission has not issued any order
preventing or suspending the use of any Base Prospectus or the Prospectus or
suspending the effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or threatened by the
Commission.
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(b) The
Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant
made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Stock, is not on the date hereof and will not be on the Delivery Date an
“ineligible issuer” (as defined in Rule 405). The Company has been
since the time of initial filing of the Registration Statement and continues to
be eligible to use Form S-3 for the offering of the Stock.
(c) The
Registration Statement conformed and will conform in all material respects on
the Effective Date and on the Delivery Date, and any amendment to the
Registration Statement filed on or after the date hereof will conform in all
material respects when filed, to the requirements of the Securities Act and the
Rules and Regulations. The most recent Base Prospectus conformed, and
the Prospectus will conform, in all material respects when filed with the
Commission pursuant to Rule 424(b) and on the Delivery Date to the requirements
of the Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Base Prospectus or the Prospectus conformed,
and any further documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the Exchange Act or
the Securities Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that the Company
makes no representation or warranty as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for
inclusion therein, which information is specified in Section 10(f) of this
Agreement.
(e) The
Prospectus will not, as of its date and on the Delivery Date, 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; provided, however, that the Company
makes no representation or warranty as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the by the Underwriter specifically for inclusion therein, which
information is specified in Section 10(f) of this
Agreement.
(f) The
documents (such documents, the “Incorporated Documents”)
incorporated by reference in any Base Prospectus or the Prospectus did not, and
any further documents filed and incorporated by reference therein will not, when
filed with the Commission, 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.
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(g) The
Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company
makes no representation or warranty as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company by the Underwriter specifically for
inclusion therein, which information is specified in Section 10(f) of this
Agreement.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), if any, when considered
together with the Pricing Disclosure Package as of the Applicable Time, 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; provided, however, that the Company
makes no representation or warranty as to information contained in or omitted
from such Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by the Underwriter specifically for
inclusion therein, which information is specified in Section 10(f) of this
Agreement.
(i)
Each Issuer Free Writing Prospectus conformed or will conform
in all material respects to the requirements of the Securities Act and the Rules
and Regulations on the date of first use, and the Company has complied with any
filing requirements applicable to such Issuer Free Writing Prospectus pursuant
to the Rules and Regulations. The Company has not made any offer
relating to the Stock that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Underwriter. The Company has
retained in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Rules and
Regulations.
(j)
The Company has not distributed and, prior to the
Delivery Date and completion of the distribution of the Stock, will not
distribute any offering material in connection with the Offering, other than any
Base Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the
Underwriter has consented in accordance with Section 1(i) or Section 6(vi) of this
Agreement.
(k) As
of the date specified in the Incorporated Documents, the Disclosure Package and
the Prospectus, the Company had authorized and outstanding capitalization as set
forth in the Incorporated Documents; all of the issued and outstanding shares of
capital stock, including the Common Stock and the Stock, of the Company have
been duly authorized and validly issued and are fully paid and non-assessable,
have been issued in compliance with all applicable federal and state securities
laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right. All of the Company’s
options, warrants and other rights to purchase or exchange any securities for
shares of the Company’s capital stock have been duly authorized and validly
issued and, as of the respective dates of the Incorporated Documents, the
Pricing Disclosure Package and the Prospectus, conform to the description
thereof contained in the Incorporated Documents, the Pricing Disclosure Package
and the Prospectus and were issued in compliance with federal and state
securities laws.
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(l)
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 full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and to execute and
deliver this Agreement.
(m) the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the business, properties,
condition (financial or otherwise), results of operation or prospects of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse
Effect”).
(n) The
Company has no “subsidiaries” (as defined in Rule 405 under the Securities Act)
other than (i) those listed in Exhibit 21.1 of the Company’s Annual Report on
Form 10-K for the year ended January 2, 2010 and (ii) subsidiaries of the
Company that do not own or possess any property or assets, or have any
obligations or liabilities, or possess any rights (by contract, franchise,
permit or otherwise) or engage in any operations that are, individually or in
the aggregate, material to the business, properties, condition (financial or
otherwise), results of operation or prospects of the Company and the
Subsidiaries taken as a whole. The Company has no “significant
subsidiary,” as that term is defined in Rule 1-02(w) of Regulation S-X under the
Securities Act, and no group consisting of any or all of the Subsidiaries would,
in the aggregate, constitute a “significant subsidiary.” Other than
the capital stock of the Subsidiaries and immaterial stock ownership stakes in
several publicly traded companies, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt securities
of any corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity; complete and correct copies of the
certificates of incorporation and the by-laws (or other similar organizational
documents) of the Company and the Subsidiaries and all amendments thereto have
been made available to you, and except as set forth in the exhibits to the
Registration Statement, no changes therein will be made subsequent to the date
hereof and prior to the Delivery Date; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with the requisite corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; each Subsidiary is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified or in good
standing would not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise described in the Registration Statement,
Pricing Disclosure Package and Prospectus) are owned, directly or indirectly, by
the Company subject to no security interest, other encumbrance or adverse
claims; and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries are
outstanding.
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(o) The
shares of the Stock have been duly authorized and validly issued and are fully
paid and nonassessable, have been issued in compliance with all applicable
federal and state securities laws and were not issued by the Company in
violation of any statutory or contractual preemptive right or any resale right,
right of first refusal or other similar rights.
(p) The
capital stock of the Company, including the shares of Stock, shall conform in
all material respects as of the Delivery Date, to the description thereof
contained in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, and the certificates evidencing the Stock are in due and proper form
in all material respects, and the holders of the shares of Stock will not be
subject to personal liability by reason of being such holders in all material
respects.
(q) This
Agreement has been duly authorized, executed and delivered by the
Company.
(r)
Neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in any breach of,
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (i) its respective
charter or by-laws (or other similar organizational documents), or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their properties may be bound or affected, except,
with respect to this clause (ii), for such breaches, violations or defaults as
would not, individually or in the aggregate, have a Material Adverse
Effect. The execution, delivery and performance of this Agreement,
the sale of the shares of Stock, the purchase, by the Company, of shares of
Stock from the Underwriter as described in the Prospectus (the “Share Repurchase” and the
shares of Stock repurchased by the Company pursuant to the Share Repurchase, the
“Repurchased Shares”)
and the consummation of the transactions contemplated hereby will not conflict
with, result in any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would result in
any breach of or constitute a default under) (x) the charter or by-laws (or
other similar organizational documents) of the Company or any of the
Subsidiaries, (y) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, except, with respect to this clause (y), for such breaches,
violations or defaults as would not, individually or in the aggregate, have a
Material Adverse Effect, or (z) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries.
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(s) No
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency is required in connection with the sale of the Stock, the Share
Repurchase or the consummation by the Company of the transactions contemplated
hereby, other than registration of the offer and sale of the shares of Stock
under the Securities Act, which has been effected, and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Stock are being offered by the Underwriter or under the rules and
regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(t)
Except as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, and
after giving effect to the consummation of the Offering, (i) no person has the
right, contractual or otherwise, to cause the Company to issue or sell to it any
shares of Common Stock or shares of any other capital stock or other equity
interests of the Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any shares of Common
Stock or shares of any other capital stock or other equity interests of the
Company, and (iii) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of the
Stock, in the case of each of the foregoing clauses (i), (ii) and (iii), whether
as a result of the filing or effectiveness of the Registration Statement or the
sale of the shares of Stock as contemplated thereby or
otherwise. Except as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, no person has the right,
contractual or otherwise, to cause the Company to register under the Securities
Act any shares of Common Stock or shares of any other capital stock or other
equity interests of the Company, or to include any such shares or interests in
the Registration Statement or the offering contemplated thereby, whether as a
result of the filing or effectiveness of the Registration Statement or the sale
of the shares of Stock as contemplated thereby or otherwise.
(u) Each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
applicable federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business, except where the failure
to obtain such licenses, authorizations, consents and approvals would not,
individually or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of the Subsidiaries is in
violation of, or in default under, or has received written notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect.
(v) All
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases, documents, statutes or
regulations of a character required to be described in the Registration
Statement, the Base Prospectus or Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
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(w) Except
as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no actions, suits, claims or proceedings pending or,
to the Company’s knowledge, threatened to which the Company or any of the
Subsidiaries or any of their respective directors or officers is a party or of
which any of their respective properties is subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, except any such action, suit,
claim, investigation or proceeding which would not result in a judgment, decree
or order having, individually or in the aggregate, a Material Adverse Effect or
preventing consummation of the transactions contemplated hereby.
(x)
Based solely on information provided by PricewaterhouseCoopers LLP
(“PricewaterhouseCoopers”) to
the Company and the Company’s knowledge and belief, PricewaterhouseCoopers,
whose report on the consolidated financial statements of the Company and the
Subsidiaries, and the effectiveness of the Company’s internal control over
financial reporting, is filed with the Commission as part of the Registration
Statement, is an independent registered public accounting firm as required by
the Securities Act.
(y) The
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, together with the related notes, present fairly, in all material
respects, the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations, cash flows and stockholders’ equity of the Company and the
Subsidiaries for the periods specified and, except as otherwise set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, have
been prepared in compliance with the requirements of the Securities Act and in
conformity with generally accepted accounting principles in the United States of
America applied on a consistent basis during the periods
involved. Any pro forma financial statement or data included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package or the Prospectus comply with the applicable requirements of Regulation
S-X of the Securities Act, if any, and the assumptions used in the preparation
of such pro forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the transactions or
circumstances described therein, and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements. The other financial and statistical data set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, are
accurately presented and prepared on a basis consistent with the financial
statements and books and records of the Company. There are no
financial statements (historical or pro forma) that are required to be included
in the Registration Statement, the Pricing Disclosure Package or the Prospectus
that are not included as required. The Company and the Subsidiaries
do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. All
disclosures contained in the Registration Statement, the Pricing Disclosure
Package or the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the
Securities Act, to the extent applicable.
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(z)
Subsequent to the respective dates as of which
information is given or incorporated by reference in the Pricing Disclosure
Package, excluding any amendments or supplements to the foregoing made after the
execution of this Agreement, there has not, except as disclosed in the Pricing
Disclosure Package, been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business, properties,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the
Company or the Subsidiaries, which is material to the Company and the
Subsidiaries taken as a whole, (iv) except as contemplated by the Pricing
Disclosure Package, any change in the capital stock or outstanding indebtedness
of the Company or the Subsidiaries or (v) except as contemplated by the Pricing
Disclosure Package, any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company.
(aa) The
Company has obtained a lock-up agreement in the form set forth as Exhibit A hereto
(each, a “Lock-Up
Agreement”) from each director and executive officer of the
Company.
(bb) The
Company is not and, after giving effect to the offering and sale of the Stock
and the Share Repurchase, will not be an “investment company,” or to its
knowledge, an entity “controlled” by an entity required to register as an
“investment company,” as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company
Act”).
(cc) Each
of Company and the Subsidiaries has good and marketable title to all property
(real and personal) described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus as being owned by each of them, free and
clear of all liens, claims, security interests or other encumbrances except as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made or proposed to be made of such property by the
Company. All the property described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus as being held under lease by
the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and buildings by the
Company.
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(dd) Except
as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, (i) to the Company’s knowledge, the Company and the Subsidiaries
own, or have obtained valid and enforceable licenses for, or other rights to
use, the inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, copyrights, trade secrets and other proprietary
information described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus as being owned or licensed by them, except where the
failure to own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect (collectively, “Intellectual Property”); (ii)
to the Company’s knowledge, there are no third parties who have or will be able
to establish rights to any Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to the
Company and except for ownership rights by third parties which would not,
individually or in the aggregate, result in a Material Adverse Effect; (iii) to
the Company’s knowledge, there is no infringement by third parties of any
Intellectual Property which is material to the Company and which infringement
would, individually or in the aggregate, result in a Material Adverse Effect;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property which is material to the Company and which action, suit,
proceeding or claim would, if determined adversely to the Company, result,
individually or in the aggregate, in a Material Adverse Effect; (v) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others which
action, suit, proceeding or claim would, if determined adversely to the Company,
result, individually or in the aggregate, in a Material Adverse Effect; and (vi)
to the Company’s knowledge, there is no prior art which has not been disclosed
to the U.S. Patent and Trademark Office that may render any patent application
relating to any of the Intellectual Property owned by the Company
unpatentable.
(ee) Except
for matters which would not, individually or in the aggregate, have a Material
Adverse Effect, (i) neither the Company nor any of the Subsidiaries is engaged
in any unfair labor practice; (ii) there is (A) no unfair labor practice
complaint pending or, to the Company’s knowledge, threatened against the Company
or any of the Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company’s knowledge, threatened, (B)
no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries and (C) no
union representation dispute currently existing concerning the employees of the
Company or any of the Subsidiaries, and (iii) to the Company’s knowledge, (A) no
union organizing activities are currently taking place concerning the employees
of the Company or any of the Subsidiaries and (B) there has been no violation of
any applicable federal, state, local or foreign law relating to discrimination
in the hiring, promotion or pay of employees, any applicable wage or hour laws
or any provision of the Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules and
regulations promulgated thereunder concerning the employees of the Company or
any of the Subsidiaries.
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(ff) The
Company and the Subsidiaries and their properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse
Effect. There are no past, present or, to the Company’s knowledge,
reasonably anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be expected to give
rise to any material costs or liabilities to the Company or the Subsidiaries
under, or to interfere with or prevent compliance by the Company or the
Subsidiaries with, Environmental Laws. Except as would not,
individually or in the aggregate, have a Material Adverse Effect, neither the
Company nor any of the Subsidiaries (i) is, to the Company’s knowledge, the
subject of any investigation, (ii) has received any written notice or claim,
(iii) is a party to or affected by any pending or, to the Company’s knowledge,
threatened action, suit or proceeding, (iv) is bound by any judgment, decree or
order or (v) has entered into any agreement, in each case relating to any
alleged violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law” means any
federal, state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, applicable to the Company or any Subsidiary
which relates to health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and “Hazardous Materials” means any
material (including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to liability
under any Environmental Law).
(gg) In
the ordinary course of its business, the Company and each of the Subsidiaries
maintains procedures for performing regular internal audits of each of its
properties for compliance with applicable Environmental Laws and ensuring
correction of any material incidents of non-compliance detected by means of such
audits.
(hh) All
tax returns required to be filed by the Company and each of the Subsidiaries
(including any applicable extensions) have been filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid, other than
those being contested in good faith and for which adequate reserves have been
provided and except where the failure to file to such returns or to pay such
taxes would not, individually or in the aggregate, have a Material Adverse
Effect.
(ii) The
Company and each of the Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses as the Company deems adequate;
such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company
and the Subsidiaries and their businesses All such insurance is fully
in force on the date hereof and will be fully in force at the Delivery
Date.
(jj) Neither
the Company nor any of the Subsidiaries has sustained since the date of the last
audited financial statements included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus any
material loss or interference with their respective businesses 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, other than
as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus.
12
(kk)
The Company has not sent or received any
communication regarding termination of, or intent not to renew, any of the
material contracts or agreements filed as an exhibit to or referred to or
described in the Registration Statement, the Pricing Disclosure Package, the
Prospectus or any Incorporated Document, and no such termination or non-renewal
has been threatened in writing by the Company or, to the Company’s knowledge,
any other party to any such contract or agreement.
(ll) The
Company and each of the Subsidiaries maintains 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 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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(mm) the
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act), which
are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s Chief
Executive Officer and its Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective to perform
the functions for which they were established and have been evaluated for
effectiveness as of January 2, 2010. The Company’s independent registered public
accounting firm and the Audit Committee of the Board of Directors have been
advised of: (x) any significant deficiencies in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report
financial data; and (y) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal control
over financial reporting. The principal executive officer and
principal financial officer of the Company have made all certifications required
by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any
related rules and regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct.
(nn) The
Company has provided you true, correct, and complete copies of all documentation
pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive officer of
the Company, or to any family member or affiliate of any director or executive
officer of the Company; and since July 30, 2002, the Company has not, directly
or indirectly, including through any Subsidiary: (i) extended credit, arranged
to extend credit, or renewed any extension of credit, in the form of a personal
loan, to or for any director or executive officer of the Company, or to or for
any family member or affiliate of any director or executive officer of the
Company; or (ii) made any material modification, including any renewal thereof,
to any term of any personal loan to any director or executive officer of the
Company, or any family member or affiliate of any director or executive officer,
which loan was outstanding on July 30, 2002.
13
(oo) All
statistical and market-related data included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package or the Prospectus are
based on or derived from sources that the Company believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required.
(pp) Neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge after
due inquiry, any employee or agent of the Company or the Subsidiaries has made
any payment of funds of the Company or the Subsidiaries or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus.
(qq) Neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted or
could reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of Stock.
(rr) To
the Company’s knowledge, based solely upon Schedule 13D, Schedule 13G or other
filings respecting the Company by such persons with the Commission and upon
completed questionnaires, there are no affiliations or associations between any
member of FINRA and any of the Company’s officers, directors or 5% or greater
securityholders, except as set forth in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(ss) The
Stock has been approved for listing, subject to official notice of issuance, on
the New York Stock Exchange.
Any
certificate signed by any officer of the Company and delivered to the
Underwriter or counsel for the Underwriter in connection with the offering of
the Stock shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to the Underwriter.
2. Representations,
Warranties and Agreements of the Selling Stockholder. The
Selling Stockholder represents, warrants and agrees that:
14
(a) The
Selling Stockholder now is and at the time of delivery of the shares of Stock
will be, the record and beneficial owner of the shares of Stock to be sold at
the Delivery Date by the Selling Stockholder pursuant to this Agreement, free
and clear of all liens, encumbrances, equities or adverse
claims. Upon payment for the shares of Stock to be sold by the
Selling Stockholder pursuant to this Agreement, delivery of the shares of Stock,
as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee
as may be designated by The Depository Trust Company (“DTC”), registration of such
shares of Stock in the name of Cede or such other nominee and the crediting of
such shares of Stock on the books of DTC to securities accounts of the
Underwriter, (A) DTC will be a “protected purchaser” of such shares of Stock
within the meaning of Section 8-303 of the Uniform Commercial Code as in effect
in the State of New York (the “UCC”), (B) under Section 8-501
of the UCC, the Underwriter will acquire a valid security entitlement with
respect to such shares of Stock and (C) no action based on an “adverse claim,”
within the meaning of Section 8-102 of the UCC, to such shares of Stock may be
asserted against the Underwriter with respect to such security
entitlement. For purposes of this Section 2(a), the Selling
Stockholder may assume that when such payment, delivery, registration and
crediting occur, (x) such shares of Stock will have been registered in the name
of Cede or another nominee designated by DTC, in each case on the Company’s
share registry in accordance with its certificate of incorporation and
applicable law, (y) DTC is a “clearing corporation” within the meaning of
Section 8-102 of the UCC and (z) DTC indicates by book entries on its books that
security entitlements with respect to the Shares have been credited to the
accounts of the Underwriter.
(b) The
Selling Stockholder has and at the time of delivery of the Shares of Stock will
have, full legal right, power and capacity, and any approval required by law
(other than those imposed by the Securities Act and the securities or blue sky
laws of certain jurisdictions), to sell, assign, transfer and deliver the shares
of Stock in the manner provided in this Agreement.
(c) This
Agreement has been duly authorized, executed and delivered by or on behalf of
the Selling Stockholder.
(d) The
execution, delivery and performance of this Agreement by the Selling
Stockholder, the sale of the shares of Stock to be sold by the Selling
Stockholder hereunder and the compliance by the Selling Stockholder with all of
the provisions of this Agreement, and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby (i) will not
conflict with, or result in any breach of or constitute a default under (nor
constitute any event which, with notice, lapse of time, or both, would result in
any breach of, or constitute a default under), (x) its charter, by-laws or other
organizational documents, (y) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder or the Selling Stockholder’s
properties may be bound or affected and which is material to the Selling
Stockholder or which is material to the transactions contemplated by this
Agreement or (z) under any federal, state, local or foreign law, regulation or
rule in any decree, judgment or order applicable to the Selling Stockholder, and
(ii) such sale cannot be matched with a corresponding purchase prior to the time
of purchase, for purposes of, and as determined pursuant to, Section 16(b) of
the Exchange Act.
15
(e) The
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the dissolution of liquidation of the Selling
Stockholder or by the occurrence of any other event. If the Selling
Stockholder should be dissolved or liquidated, or if any other such event should
occur, before the delivery of the shares of Stock hereunder, certificates
representing the shares of Stock to be sold by the Selling Stockholder shall be
delivered by or on behalf of the Selling Stockholder in accordance with the
terms and conditions of this Agreement.
(f) The
Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact concerning the Selling Stockholder Information or
omit to state a material fact concerning the Selling Stockholder Information
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus will not, as of its date and on the
Delivery Date, contain an untrue statement of a material fact concerning the
Selling Stockholder Information or omit to state a material fact concerning the
Selling Stockholder Information 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. The Incorporated Documents did not and
will not, when filed with the Commission, contain an untrue statement of a
material fact concerning the Selling Stockholder Information or omit to state a
material fact concerning the Selling Stockholder Information 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. The Pricing
Disclosure Package did not, as of the Applicable Time, contain an untrue
statement of a material fact concerning the Selling Stockholder Information or
omit to state a material fact concerning the Selling Stockholder Information
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.
(g) The
Selling Stockholder has not taken, directly or indirectly, any action designed,
or which has constituted or could reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the resale of the shares of
Stock.
(h) The
sale of the shares of Stock pursuant to this Agreement is not prompted by any
material negative facts concerning the Company’s operations and business which
are not set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(i) No
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, in each case having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder, is required for the performance
of such Selling Stockholder of its obligations under this Agreement, except such
as may have been previously made and obtained or as may be required (i) under
the Securities Act and the regulations promulgated thereunder, (ii) under the
Exchange Act and applicable state securities laws in connection with the
purchase and sale of the Stock by the Underwriter, (iii) pursuant to the rules
and regulations of FINRA and (iv) the securities or blue sky laws of the various
state or foreign jurisdictions in which the shares of Stock are being offered by
the Underwriter.
16
(j) Neither
the Selling Stockholder nor any person acting on behalf of the Selling
Stockholder (other than, if applicable, the Company and the Underwriter) has
used or referred to any “free writing prospectus” (as defined in Rule 405)
relating to the Stock.
Any
certificate signed by any officer of the Selling Stockholder and delivered to
the Underwriter or counsel for the Underwriter in connection with the offering
of the Stock shall be deemed a representation and warranty by the Selling
Stockholder, as to matters covered thereby, to the Underwriter.
3. Purchase of the Stock by the
Underwriter. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Selling Stockholder agrees to sell the Stock to the Underwriter,
and the Underwriter agrees to purchase the Stock from the
Stockholder. The price of the Stock purchased by the Underwriter
shall be $20.30 per share.
The
Selling Stockholder shall not be obligated to deliver any of the Stock to be
delivered on the Delivery Date, except upon payment for all such Stock to be
purchased on the Delivery Date as provided herein.
4. Offering
of Stock by the Underwriter. The Underwriter proposes to
offer the Stock for sale upon the terms and conditions to be set forth in the
Prospectus. The Underwriter advises the Company that the Underwriter
intends to initially offer the Stock (excluding the Repurchased Shares) at the
public offering price set forth on the cover page of the
Prospectus. The Underwriter may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as the Underwriter may determine.
5. Delivery
of and Payment for the Stock. Delivery of and
payment for the Stock shall be made at 10:00 A.M., New York City time, on
March 16, 2010 or at such other date or place as shall be determined by
agreement among the Underwriter, the Company and the Selling
Stockholder. This date and time are sometimes referred to as the
“Delivery
Date.” Delivery of the Stock shall be made to the Underwriter
against payment by the Underwriter of the aggregate purchase prices of the Stock
by wire transfer in immediately available funds to the account specified by the
Selling Stockholder. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. The Selling
Stockholder shall deliver the Stock on the Delivery Date through the facilities
of DTC.
17
6.
Further
Agreements of the Company and the Underwriter. (a) The Company
agrees:
(i)
to prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement or the
Prospectus prior to the Delivery Date except as provided herein; to advise the
Underwriter, promptly after it receives notice thereof, of the time when any
amendment or supplement to the Registration Statement or the Prospectus has been
filed and to furnish the Underwriter with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (whether physically or through compliance with Rule
172 under the Act or any similar rule) is required in connection with the
offering or sale of the Stock; to advise the Underwriter, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding or examination for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(ii) except
to the extent the same is not publicly available on the Commission’s XXXXX or
IDEA system, to furnish promptly to the Underwriter and to counsel for the
Underwriter, at its request, one (1) signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed
therewith;
(iii) except
to the extent the same is not publicly available on the Commission’s XXXXX or
IDEA system, to deliver promptly to the Underwriter such number of the following
documents as the Underwriter shall reasonably request for the purposes
contemplated by the Securities Act: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement and
the computation of per share earnings), (B) each Base Prospectus, the Prospectus
and any amended or supplemented Prospectus, (C) each Issuer Free Writing
Prospectus, if any, and (D) any Incorporated Document; and, if the delivery of a
prospectus (whether physically or through compliance with Rule 172 under the Act
or any similar rule) is required at any time after the date hereof in connection
with the offering or sale of the Stock or any other securities relating thereto
and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to notify the
Underwriter and, upon its request, to file such document and to prepare and
furnish without charge to the Underwriter and to any dealer in securities as
many copies as the Underwriter may from time to time reasonably request of an
amended or supplemented Prospectus that will correct such statement or omission
or effect such compliance;
18
(iv) to
file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the reasonable judgment of
the Company or the Underwriter, be required by the Securities Act or requested
by the Commission;
(v) prior
to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, or, during the time the delivery of a prospectus
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) is required in connection with the Offeroing, any document
incorporated by reference in the Prospectus or any amendment to any document
incorporated by reference in the Prospectus, to furnish a copy thereof to the
Underwriter and counsel for the Underwriter and obtain the consent of the
Underwriter to the filing (which consent shall not be unreasonably withheld or
delayed);
(vi) not
to make any offer relating to the Stock that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Underwriter;
(vii) to
comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events
shall have occurred as a result of which any Issuer Free Writing Prospectus, as
then amended or supplemented, would conflict with the information in the
Registration Statement, the most recent Base Prospectus or the Prospectus 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 under which they were made, not misleading, or, if for any
other reason it shall be necessary to amend or supplement any Issuer Free
Writing Prospectus, to notify the Underwriter and, upon its request, to file
such document and to prepare and furnish without charge to the Underwriter as
many copies as the Underwriter may from time to time reasonably request of an
amended or supplemented Issuer Free Writing Prospectus that will correct such
conflict, statement or omission or effect such compliance;
(viii) as
soon as practicable after the Effective Date and in any event not later than 16
months after the date hereof, to make generally available to the Company’s
security holders and to deliver to the Underwriter an earnings statement of the
Company and the Subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations;
(ix) promptly
from time to time to take such action as the Underwriter may reasonably request
to qualify the Stock for offering and sale under the securities laws of Canada
and such other jurisdictions as the Underwriter 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 Stock; provided
that in connection therewith the Company shall not be required to (i) qualify as
a foreign corporation in any jurisdiction in which it would not otherwise be
required to so qualify, (ii) file a general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any jurisdiction in
which it would not otherwise be subject; and
19
(x)
for a period commencing on the date hereof and
ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or exchangeable
for Common Stock (other than the Stock and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation plans
existing on the date hereof), or sell or grant options, rights or warrants with
respect to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant to
option plans existing on the date hereof), (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise,
(3) file or cause to be filed a registration statement, including any
amendments, with respect to the registration of any shares of Common Stock or
securities convertible, exercisable or exchangeable into Common Stock or any
other securities of the Company (other than any registration statement on Form
S-8) or (4) publicly disclose the intention to do any of the foregoing, in each
case without the prior written consent of the Underwriter, and to cause each
director and executive officer of the Company to furnish to the Underwriter,
prior to the Delivery Date, a Lock-Up Agreement; notwithstanding the foregoing,
if (1) during the last 17 days of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed
in this paragraph shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the announcement of
the material news or the occurrence of the material event, unless the
Underwriter shall waive such extension in writing;
(b) The
Underwriter agrees that it shall not include any “issuer information” (as
defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by the Underwriter without the prior consent of the Company
(any such issuer information with respect to whose use the Company has given its
consent, “Permitted Issuer
Information”); provided that (i) no such
consent shall be required with respect to any such issuer information contained
in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used in this
Section 6(b), shall not be
deemed to include information prepared by or on behalf of the Underwriter on the
basis of or derived from issuer information.
20
7.
Further
Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) during
the Lock-Up Period, not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the Stock), (2) enter into any
swap or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, (3) make any demand for or exercise any right or file or cause to be
filed a registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the
Company or (4) publicly disclose the intention to do any of the foregoing, in
each case without the prior written consent of the Underwriter; notwithstanding
the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company
issues an earnings release or material news or a material event relating to the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed
in this paragraph shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the announcement of
the material news or the occurrence of the material event, unless the
Underwriter shall waive such extension in writing; provided, however, that this Section 7(a) shall not apply
to (i) distributions of any shares of Common Stock or securities convertible
into or exchangeable for Common Stock by the Selling Stockholder to any of its
general or limited partners, managers, members, affiliates or any investment
fund or other entity controlled or managed by the Selling Stockholder; (ii)
transfers of any shares of Common Stock or securities convertible into or
exercisable for Common Stock by the Selling Stockholder in connection with the
sale or other bona fide
transfer in a single transaction of all or substantially all of the Selling
Stockholder’s partnership interests or all or substantially all of the Selling
Stockholder’s assets, in any such case not undertaken for the purpose of
avoiding the restrictions imposed by this Section 7(a) or to another
corporation, partnership, limited liability company, investment fund or other
business entity so long as the transferee is an affiliate of, or controls or
manages, the Selling Stockholder and such transfer is not for value or (iii)
offers for sale, sales, transfers or other dispositions of Common Stock by the
Selling Stockholder during the next succeeding “open window” under the Company’s
Xxxxxxx Xxxxxxx Policy (as the same is in effect as of the execution hereof,
without regard to any subsequent amendments to, waivers from, or modifications
of the same) after the filing, with the Commission, of the Company’s quarterly
report on Form 10-Q for the first fiscal quarter of 2010; provided that (A) it shall be
a condition to any such transfer under clauses (i) or (ii) above that the
transferee agrees to be bound by the terms of this Section 7(a) to the same
extent as if the transferee were a party to this Agreement and (B) it shall be a
condition to any such transfer that (x) no filing by the Selling Stockholder or
any of its affiliates under the Exchange Act shall be required or shall be
voluntarily made in connection with such transfer or distribution (other than a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after
the expiration of the Lock-Up Period; (y) neither the Selling Stockholder nor
any of its affiliates shall be required by law (including without limitation the
disclosure requirements of the Securities Act and the Exchange Act) to make, and
none of them shall voluntarily make, any public announcement of the transfer or
disposition, and (iv) the Selling Stockholder notifies the Underwriter at least
two business days prior to the proposed transfer or disposition; provided further that this Section 7(a) shall be of no
force or effect if the Offering shall not have been completed by March 24,
2010;
21
(b) prior
to engaging in any transaction or taking any other action that is subject to the
terms of Section
7(a) of
this Agreement during the period from the date of this Agreement to and
including the 34th day
following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up
Period (as such may have been extended pursuant to Section 7(a) of this
Agreement) has expired;
(c) that
the obligations of the Selling Stockholder hereunder shall not be terminated by
any act of the Selling Stockholder, by operation of law or the occurrence of any
other event;
(d) neither
the Selling Stockholder nor any person acting on behalf of the Selling
Stockholder (other than, if applicable, the Company and the Underwriter) shall
use or refer to any “free writing prospectus” (as defined in Rule 405), relating
to the Stock; and
(e) to
deliver to the Underwriter prior to the Delivery Date a properly completed and
executed United States Treasury Department Form W-8 (if the Selling Stockholder
is a non-United States person) or Form W-9 (if the Selling Stockholder is a
United States person).
22
8. Expenses. The
Company agrees, whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, to pay all costs, expenses,
fees and taxes incident to and in connection with (a) the authorization,
issuance, sale and delivery of the Stock and any stamp duties or other taxes
payable in that connection, and the preparation and printing of certificates for
the Stock; (b) the preparation, printing and filing under the Securities Act of
the Registration Statement (including any exhibits thereto), any Base
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), any Base Prospectus, the Prospectus, any
Issuer Free Writing Prospectus and any amendment or supplement thereto, or any
document incorporated by reference therein, all as provided in this Agreement;
(d) the production and distribution of this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
Stock; (e) any required review by the FINRA of the terms of sale of the Stock
(including related fees and expenses of counsel to the Underwriter in an amount
that is not greater than $10,000); (f) the listing of the Stock on the New York
Stock Exchange and/or any other exchange; (g) the qualification of the Stock
under the securities laws of the several jurisdictions as provided in Section 6(a)(ix) of this
Agreement and the preparation, printing and distribution of a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriter);
(h) the preparation, printing and distribution of one or more versions of the
Base Prospectus and the Prospectus for distribution in Canada, often in the form
of a Canadian “wrapper” (including related fees and expenses of Canadian counsel
to the Underwriter); (i) the investor presentations on any “road show”
undertaken in connection with the marketing of the Stock, including, without
limitation, expenses associated with any electronic roadshow, travel and lodging
expenses of the representatives and officers of the Company and the cost of any
aircraft chartered in connection with the road show; (j) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; and (k) all costs and expenses incident to the performance of
the obligations of the Selling Stockholder hereunder, including without
limitation, any fees and expenses of counsel to the Selling Stockholder, and all
expenses and taxes incident to the sale and delivery of the shares of Stock to
be sold by the Selling Stockholder to the Underwriter hereunder, to the extent,
but solely to the extent, that the Company is responsible for such obligations
pursuant to any agreement between the Company and the Selling Stockholder (and
any other such fees or expenses of the Selling Stockholder not specifically
provided for herein or therein shall be borne by the Selling Stockholder); provided that, except as
provided in this Section 8 and in Section 12 of this Agreement,
the Underwriter shall pay its own costs and expenses, including the costs and
expenses of its counsel, any transfer taxes on the Stock which it may sell and
the expenses of advertising any offering of the Stock made by the Underwriter,
and the Company shall pay any transfer taxes payable in connection with the
sales of Stock by the Selling Stockholder to the Underwriter. The
Company agrees, whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, to pay the Underwriter agreed
fees and expenses up to an aggregate of $300,000, which shall be inclusive of
any costs, fees, expenses and disbursements set forth above in clauses (e), (g),
(h) and (i) of this Section 8, including the
reasonable fees and expenses of Underwriter’s counsel.
9. Conditions
of the Underwriter’s Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on the Delivery
Date, of the respective representations and warranties of each of the Company
and the Selling Stockholder contained herein, to the performance by each of the
Company and the Selling Stockholder of their respective obligations hereunder,
and to each of the following additional terms and conditions:
(a) The
Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a)(i) of this
Agreement; the Company shall have complied with all filing requirements
applicable to any Issuer Free Writing Prospectus used or referred to after the
date hereof; no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus shall have been issued and no proceeding or examination
for such purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
23
(b) The
Underwriter shall not have discovered and disclosed to the Company on or prior
to the Delivery Date that the Registration Statement, the Prospectus or the
Pricing Disclosure Package, or any amendment or supplement thereto, contains an
untrue statement of a fact which, in the opinion of the Underwriter, is material
or omits to state a fact which, in the opinion of the Underwriter, is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Stock, the Registration Statement, the
Prospectus and any Issuer Free Writing Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the Underwriter,
and the Company and the Selling Stockholder, as the case may be, shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Proskauer
Rose LLP shall have furnished to the Underwriter its written opinion, as counsel
to the Company, addressed to the Underwriter and dated the Delivery Date, in
form and substance reasonably satisfactory to the Underwriter, substantially in
the form attached hereto as Exhibit
B-1.
(e) The
General Counsel of the Company shall have furnished to the Underwriter its
written opinion, addressed to the Underwriter and dated the Delivery Date, in
form and substance reasonably satisfactory to the Underwriter, substantially in
the form attached hereto as Exhibit
B-2.
(f)
Xxxxxx & Xxxxxxx LLP shall have
furnished to the Underwriter its written opinion, as counsel to the Selling
Stockholder, addressed to the Underwriter and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriter, substantially in the
form attached hereto as Exhibit
B-3.
(g) The
Underwriter shall have received from Xxxxx & XxXxxxx LLP, counsel for the
Underwriter, such opinion or opinions and negative assurance statements, dated
the Delivery Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Prospectus and the Pricing Disclosure Package and
other related matters as the Underwriter may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(h) At
the time of execution of this Agreement, the Underwriter shall have received
from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to
the Underwriter, addressed to the Underwriter and dated the date hereof (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X under the Exchange Act, and (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the most recent Base
Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with registered public offerings.
24
(i) With
respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding
paragraph and delivered to the Underwriter concurrently with the execution of
this Agreement (the “initial
letter”), the Company shall have furnished to the Underwriter a letter
(the “bring-down
letter”) of such accountants, addressed to the Underwriter and dated the
Delivery Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X under the Exchange Act, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(j) The
Company shall have furnished to the Underwriter a certificate, dated the
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer
stating that:
(i) the
representations, warranties and agreements of the Company in Section 1 of this
Agreement are true and correct on and as of the Delivery Date, and the Company
has complied with all its agreements contained herein and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the
Delivery Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement has been
issued; and no proceedings or examination for that purpose have been instituted
or, to the knowledge of such officers, threatened; and
(iii) each
of them has carefully examined the Registration Statement, the Prospectus and
the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on
the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable
Time, did not and do not contain any untrue statement of a material fact and did
not and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (except in the case of the Prospectus
and the Pricing Disclosure Package, in the light of the circumstances under
which they were made) not misleading, and (B) since the Effective Date, no event
has occurred that should have been set forth in a supplement or amendment to the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus
that has not been so set forth.
(k) The
Selling Stockholder shall have furnished to the Underwriter on the Delivery Date
a certificate, dated the Delivery Date, signed by, or on behalf of, the Selling
Stockholder stating that the representations and warranties of the Selling
Stockholder in Section 2 of this
Agreement are true and correct on and as of the Delivery Date, and the Selling
Stockholder has complied with all its agreements contained herein and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Delivery Date.
25
(l)
Except as disclosed in the Pricing Disclosure Package as of
the Applicable Time, (i) Neither the Company nor any of the Subsidiaries shall
have sustained, since the date of the latest audited financial statements
included or incorporated by reference in the most recent Base 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 or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of the
Company or any of the Subsidiaries or any change in or affecting the business,
properties, condition (financial or otherwise) or results of operations or
prospects of the Company and the Subsidiaries taken as a whole, the effect of
which, in any such case described in clause (i) or (ii), is, in the judgment of
the Underwriter, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Stock
being delivered on the Delivery Date on the terms and in the manner contemplated
in the Prospectus.
(m) The
Company has no debt securities or preferred stock that is rated by any
“nationally recognized statistical rating organization” (as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations).
(n) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities, (iii) there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) such a
material adverse change in general economic, political or financial conditions,
including, without limitation, as a result of terrorist activities after the
date hereof (or the effect of international conditions on the financial markets
in the United States shall be such), as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on the Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(o) The
Lock-Up Agreements described in Section 1(aa) of this
Agreement and delivered to the Underwriter on or before the date of this
Agreement shall be in full force and effect on the Delivery Date.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to the
Underwriter.
26
10. Indemnification
and Contribution.
(a) The
Company shall indemnify and hold harmless the Underwriter, its directors,
officers and employees and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which the Underwriter,
director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Base Prospectus, the
Registration Statement, the Prospectus or in any amendment or supplement
thereto, (B) any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or (C) any Permitted Issuer Information used or referred to
in any “free writing prospectus” (as defined in Rule 405) used or referred to by
the Underwriter, (D) any “road show” (as defined in Rule 433) not constituting
an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or
(E) any Blue Sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company for use
therein) specifically for the purpose of qualifying any or all of the Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a “Blue Sky Application”) or (ii)
the omission or alleged omission to state in any Base Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Base Prospectus, the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus or in any such amendment or supplement thereto or in any
Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky
Application, in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by the Underwriter
specifically for inclusion therein, which information consists solely of the
information specified in Section 10(f) of this
Agreement. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to the Underwriter or to any
director, officer, employee or controlling person of the
Underwriter.
27
(b) The
Selling Stockholder shall indemnify and hold harmless the Underwriter, its
directors, officers and employees, and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which the
Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact concerning the Selling
Stockholder Information contained in any Base Prospectus, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus Road Show, any Blue Sky Application or any “free writing
prospectus” (as defined in Rule 405), prepared by or on behalf of the Selling
Stockholder or used or referred to by the Selling Stockholder in connection with
the offering of the Stock in violation of Section 7(d) of this
Agreement (a “Selling
Stockholder Free Writing Prospectus”), (ii) the omission or alleged
omission to state in any Base Prospectus, Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show,
any Blue Sky Application or any Selling Stockholder Free Writing Prospectus, any
material fact concerning the Selling Stockholder Information required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse the Underwriter, its directors, officers and employees and each
such controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, its directors, officers and employees or
controlling persons in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred or (iii) any breach of any representation or warranty of
the Selling Stockholders in this Agreement or any certificate or other agreement
delivered pursuant hereto or contemplated hereby. The total liability
of the Selling Stockholder under the indemnity agreement contained in this
paragraph and the contribution agreement contained in Section 7(e) of this
Agreement shall be limited to an amount equal to the total net proceeds from the
offering of the shares of the Stock purchased under the Agreement received by
the Selling Stockholder (before deducting expenses), as set forth in the table
on the cover page of the Prospectus. The foregoing indemnity
agreement is in addition to any liability that the Selling Stockholder may
otherwise have to the Underwriter or any officer, employee or controlling person
of the Underwriter.
(c) The
Underwriter shall indemnify and hold harmless each of the Company and the
Selling Stockholder, and each of their respective directors, officers and
employees, and each person, if any, who controls the Company or the Selling
Stockholder within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company, the Selling Stockholder or any such
director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Base Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Base Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning the
Underwriter furnished to the Company by the Underwriter specifically for
inclusion therein, which information is limited to the information set forth in
Section 10(f) of this
Agreement. The foregoing indemnity agreement is in addition to any
liability that the Underwriter may otherwise have to the Company, the Selling
Stockholder or any such director, officer, employee or controlling
person.
28
(d) Promptly
after receipt by an indemnified party under this Section 10 of notice of any
claim or the commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the
extent it has been materially prejudiced by such failure and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 10. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided, however, that the
indemnified party shall have the right to employ counsel to represent jointly
the indemnified party and those other indemnified parties and their respective
directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
under this Section
10 if
(i) the indemnified party and the indemnifying party shall have so mutually
agreed; (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to the indemnified party; (iii) the
indemnified party and its directors, officers, employees and controlling persons
shall have reasonably concluded that there may be legal defenses available to
them that are different from or in addition to those available to the
indemnifying party; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the indemnified parties or their respective
directors, officers, employees or controlling persons, on the one hand, and the
indemnifying party, on the other hand, and representation of both sets of
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include any findings of fact or admissions of
fault or culpability as to the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
29
(e) If
the indemnification provided for in this Section 10 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section
10(a),
Section 10(b) or Section 10(c) of this
Agreement in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder, on the one hand, and the Underwriter, on the other, from
the offering of the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Stockholder, on the one hand,
and the Underwriter, on the other, with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Selling Stockholder, on the one hand, and the
Underwriter, on the other, with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the
Selling Stockholder, as set forth in the table on the cover page of the
Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriter with respect to the shares of the Stock
purchased under this Agreement, as set forth in the table on the cover page of
the Prospectus, on the other hand. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholder or the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholder and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
Section 10(e) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed
to include, for purposes of this Section 10(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 10(e), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the net proceeds from the sale of the Stock underwritten by it
exceeds the amount of any damages that the Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding anything in this Section 10(e) to the
contrary, (x) the Selling Stockholder shall not be required to contribute any
amount unless the applicable loss, claim, damage or liability would otherwise
have been indemnifiable under Section 10(b) of this
Agreement (if such section were enforced in accordance with its terms) and (y)
the amount, if any, which the Selling Stockholder is required to contribute
pursuant to this Section 10(e) shall be
subject to the second sentence of Section 10(b) of this
Agreement and shall not exceed the amount of the applicable loss, claim, damage
or liability for which the Selling Stockholder would have been required to
indemnify under Section 10(b) of this
Agreement (if such section were enforced in accordance with its
terms). No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
30
(f)
The Underwriter confirms and the Company and each Selling Stockholder
acknowledges and agrees that the statements regarding delivery of shares by the
Underwriter set forth on the cover page of, and the concession and reallowance
figures and the paragraph relating to stabilization by the Underwriter appearing
under the caption “Underwriting” in, the most recent Prospectus are the only
information concerning the Underwriter furnished in writing to the Company by
the Underwriter specifically for inclusion in any Base Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto.
11. Termination. The obligations
of the Underwriter hereunder may be terminated by the Underwriter by notice
given to and received by the Company and the Selling Stockholder prior to
delivery of and payment for the Stock if, prior to that time, any of the events
described in Sections
9(l) and 9(n) of this
Agreement shall have occurred or if the Underwriter shall decline to purchase
the Stock for any reason permitted under this Agreement.
12. Reimbursement
of Underwriter’s Expenses. If (a) the
Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriter for any reason or (b) the Underwriter shall decline to purchase the
Stock for any reason permitted under this Agreement, the Company will reimburse
the Underwriter for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriter in connection with this
Agreement and the proposed purchase of the Stock, and, upon demand, the Company
shall pay the full amount thereof to the Underwriter.
31
13. Research
Analyst Independence.
The Company acknowledges that the Underwriter’s research analysts and
research departments are required to be independent from its investment banking
divisions and are subject to certain regulations and internal policies, and that
the Underwriter’s research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the
Company and/or the offering that differ from the views of its investment banking
divisions. The Company and the Selling Stockholder hereby waive and
release, to the fullest extent permitted by law, any claims that the Company or
the Selling Stockholder may have against the Underwriter with respect to any
conflict of interest that may arise from the fact that the views expressed by
their independent research analysts and research departments may be different
from or inconsistent with the views or advice communicated to the Company or the
Selling Stockholder by the Underwriter’s investment banking
divisions. The Company and the Selling Stockholder acknowledge that
the Underwriter is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own
account or the account of its customers and hold long or short positions in debt
or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
14. No
Fiduciary Duty. The Company and the Selling Stockholder
acknowledge and agree that in connection with this offering, sale of the Stock
or any other services the Underwriter may be deemed to be providing hereunder,
notwithstanding any preexisting relationship, advisory or otherwise, between the
parties or any oral representations or assurances previously or subsequently
made by the Underwriter: (i) no fiduciary or agency relationship
between the Company, the Selling Stockholder and any other person, on the one
hand, and the Underwriter, on the other, exists; (ii) the Underwriter is not
acting as an advisor, expert or otherwise, to either the Company or the Selling
Stockholder, including, without limitation, with respect to the determination of
the public offering price of the Stock, and such relationship between the
Company and the Selling Stockholder, on the one hand, and the Underwriter, on
the other, is entirely and solely commercial, based on arms-length negotiations;
(iii) any duties and obligations that the Underwriter may have to the Company or
Selling Stockholder shall be limited to those duties and obligations
specifically stated herein; and (iv) the Underwriter and its affiliates may have
interests that differ from those of the Company and the Selling
Stockholder. The Company and the Selling Stockholder hereby waive any
claims that the Company or the Selling Stockholder may have against the
Underwriter with respect to any breach of fiduciary duty in connection with this
offering.
15. Notices,
Etc. All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the Underwriter, shall be delivered or sent by mail or facsimile transmission
to Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Registration (Fax: 000-000-0000), with a copy,
in the case of any notice pursuant to Section 10(d) of this
Agreement, to the Director of Litigation, Office of the General Counsel,
Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000;
(b) if
to the Company, shall be delivered or sent by mail or facsimile transmission to
the address of the Company set forth in the Company’s Annual Report for the
fiscal year ended January 2, 2010, Attention: Xxxxx Xxxxx (Fax: 000-000-0000);
and
32
(c) if
to the Selling Stockholder, shall be delivered or sent by mail or facsimile
transmission to the Selling Stockholder at 2000 Avenue of the Stars, 00xx Xxxxx,
Xxx Xxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx (Fax:
000-000-0000).
Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Selling Stockholder shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made by Barclays Capital Inc., and the Company and the Underwriter shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on by the Selling Stockholder.
16. Persons
Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Company, the
Selling Stockholder and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the Selling Stockholder contained in this
Agreement shall also be deemed to be for the benefit of the directors, officers
and employees of the Underwriter and each person or persons, if any, who control
the Underwriter within the meaning of Section 15 of the Securities Act and
(B) the indemnity agreement of the Underwriter contained in Section 10(c) of this
Agreement shall be deemed to be for the benefit of the persons and entities
reference in such Section. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section
16, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
17. Survival. The
respective indemnities, representations, warranties and agreements of the
Company, the Selling Stockholder and the Underwriter contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
18. Definition
of the Terms “Business Day” and “Subsidiary”. For
purposes of this Agreement, (a) “business day” means each
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close and (b) “Subsidiary” means each
“subsidiary” (as defined in Rule 405 under the Securities Act) of the
Company.
19. Governing
Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
20. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
33
21.Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
If the
foregoing correctly sets forth the agreement among the Company, the Selling
Stockholder and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
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Very
truly yours,
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|||
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By:
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/s/
Xxxxxxxxxxx Xxxxx
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||
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Name:
Xxxxxxxxxxx Xxxxx
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||
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Title:
Chief Operating Officer and Chief Financial Officer
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|||
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Ares
Corporate Opportunities Fund, L.P.
|
|||
|
By:
ACOF Operating Manager, L.P., its manager
|
|||
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By:
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/s/
Xxxxxxx X. Xxxxxx
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||
|
|
Name:
Xxxxxxx X. Xxxxxx
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||
|
|
Title:
Authorized Signatory
|
||
Accepted:
Barclays
Capital Inc.
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By:
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/s/
Xxxxxxxx Xxxx
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Name:
Xxxxxxxx Xxxx
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||
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Title:
Vice President
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SCHEDULE
1
ORALLY
CONVEYED PRICING INFORMATION
Capitalized
terms used in this Schedule 1 without definition shall have the respective
meanings ascribed to them in the Underwriting Agreement of which this Schedule 1
forms a part.
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1.
|
The
Selling Stockholder is offering 3,187,351 shares of Common Stock in the
Offering.
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|
2.
|
The
Company has agreed to purchase, from the Underwriter at the same price at
which the Underwriter is purchasing the shares of Common Stock from the
Selling Stockholder, 1,593,675 of the 3,187,351 shares of Common Stock
offered by the Selling Stockholder in the Offering. The shares
of Stock not being purchased by the Company will initially be offered to
the public at a price of $21.00 per
share.
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3.
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Immediately
after giving effect to the Offering, the Selling Stockholder will
beneficially own no shares of Common
Stock.
|
Exhibit
A
LOCK-UP
LETTER AGREEMENT
Barclays
Capital Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that you (the “Underwriter”) propose to enter
into an Underwriting Agreement (the “Underwriting Agreement”)
providing for the purchase by the Underwriter of shares (the “Stock”) of Common Stock, par
value $0.01 per share (the “Common Stock”), of Maidenform
Brands, Inc., a Delaware corporation (the “Company”) currently held by
Ares Corporate Opportunities Fund, L.P. (the “Selling Stockholder”), and
that the Underwriter proposes to reoffer the Selling Stockholder’s Stock in an
offering (the “Offering”) registered under
the Securities Act of 1933, as amended (the “Securities Act”).
In
consideration of the execution of the Underwriting Agreement by the Underwriter,
and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that, for a period commencing on the date hereof and ending
on the 90th day after the date of the final Prospectus relating to the Offering
(such period, the “Lock-Up
Period”) without the prior written consent of Barclays Capital Inc., the
undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge,
or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock (including, without
limitation, shares of Common Stock that may be deemed to be beneficially owned
by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued
upon exercise of any options or warrants) or securities convertible into or
exercisable or exchangeable for Common Stock, (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of shares of Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or other securities, in cash or otherwise, (3)
make any demand for or exercise any right or cause to be filed a registration
statement, including any amendments thereto, with respect to the registration of
any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or any other securities of the Company or (4)
publicly disclose the intention to do any of the foregoing.
Notwithstanding
the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company
issues an earnings release or material news or a material event relating to the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed
by this Lock-Up Letter Agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event,
unless Barclays Capital Inc. waives such extension in writing. The
undersigned hereby further agrees that, prior to engaging in any transaction or
taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement to
and including the 34th day
following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up
Period (as such may have been extended pursuant to this paragraph) has
expired. The foregoing sentence shall not apply to (A) bona fide gifts, sales, transfers,
pledges or other dispositions of shares of any class of the Company’s capital
stock, in each case that are made exclusively between and among the undersigned
or members of the undersigned’s immediate family, including transfer by will or
intestate succession or to any trust or partnership for the direct or indirect
benefit of the undersigned or any immediate family member of the undersigned;
(B) sales of the Common Stock to the Company pursuant to net exercises or
cashless exercises of options outstanding on the date hereof, provided that
shares acquired upon such exercise shall be subject to this Lock-Up Letter
Agreement, or (C) transfers or dispositions of the undersigned's Common Stock
for payment of taxes required to be paid upon the vesting of restricted Common
Stock, including for the purpose of satisfying the withholding tax obligations
of the undersigned; provided that it shall be a
condition to any such transfer in clause (A), (B) or (C) that (i) in the case of
clause (A), the transferee/donee agrees to be bound by the terms of this Lock-Up
Letter Agreement (including, without limitation, the restrictions set forth in
the preceding sentence) to the same extent as if the transferee/donee were a
party hereto, (ii) no filing by any party (including without limitation the
donor, donee, transferor or transferee) under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), shall be required or shall be voluntarily made in connection with
such transfer or distribution (other than a filing on a Form 5, Schedule 13D or
Schedule 13G (or 13D-A or 13G-A) made after the expiration of the Lock-Up
Period), (iii) each party (including without limitation the donor, donee,
transferor or transferee) shall not be required by law (including without
limitation the disclosure requirements of the Securities Act and the Exchange
Act) to make, and shall agree to not voluntarily make, any public announcement
of the transfer or disposition, and (iv) the undersigned notifies Barclays
Capital Inc. at least two business days prior to the proposed transfer or
disposition. For purposes of this paragraph, “immediate family” shall mean
spouse, domestic partner, lineal descendant (including adopted children),
father, mother, brother or sister of the transferor.
In
furtherance of the foregoing, the Company and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
2
It is
understood that, (i) if the Company notifies the Underwriter that it does not
intend to proceed with the Offering, (ii) if the Underwriting Agreement does not
become effective, (iii) if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Stock, or (iv) if the Offering shall not have
been completed by March 24, 2010, then the undersigned will be released from its
obligations under this Lock-Up Letter Agreement.
The
undersigned understands that the Company and the Underwriter will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Company, the Selling Stockholder named therein and the
Underwriter.
[Signature
page follows]
3
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
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Very
truly yours,
|
|||
|
By:
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|||
|
Name:
|
|||
|
Title:
|
|||
Dated: _______________
4
EXHIBIT
B-1
FORM OF OPINION OF PROSKAUER
ROSE LLP
1. The
Company is existing as a corporation in good standing under the laws of the
State of Delaware, with the requisite corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Registration Statement and the Prospectus and to execute and deliver the
Underwriting Agreement;
2. Each
of the New York Subsidiaries is existing as a corporation in good standing under
the laws of the State of New York and each of the Delaware Subsidiaries is
existing as a corporation in good standing under the laws of the State of
Delaware, in each case with the requisite corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus;
3. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
4. All
of the issued and outstanding shares of capital stock of the Company are free of
preemptive rights under the Delaware General Corporation Law and the Restated
Certificate and By-laws;
5. The
holders of the Securities will not be subject to personal liability by reason of
being such holders;
6. The
Securities conform in all material respects to the description thereof contained
in the Registration Statement and the Prospectus;
7. The
Registration Statement, the Base Prospectus and the Prospectus (except as to the
financial statements and related notes and schedules thereto and other financial
and accounting data included in, or omitted therefrom, as to which we express no
opinion) comply as to form in all material respects with the applicable
requirements of the Securities Act;
8. Each
of the Incorporated Documents (except as to the financial statements and related
notes and schedules thereto and other financial and accounting data included in,
or omitted therefrom, as to which we express no opinion), as of its respective
filing date, complied as to form in all material respects with the applicable
requirements for reports on Forms 10-K, 10-Q and 8-K and proxy statements under
Regulation 14A, as the case may be, under the Exchange Act and the rules and
regulations of the Commission thereunder, and for Registration Statements on
Form S-1 under the Securities Act, and the rules and regulations of the
Commission thereunder;
B-1-1
9. The
Registration Statement has become effective under the Securities Act and, to our
knowledge, no stop order proceedings with respect thereto are pending or
threatened by the Commission, and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) under the Securities Act has been
made in the manner and within the time period required by such Rule
424(b);
10. No
approval, authorization, consent or order of or filing with any New York,
Delaware or federal governmental or regulatory commission, board, body,
authority or agency is required in connection with the sale of the Securities
and consummation by the Company of the transactions contemplated by the
Underwriting Agreement and of the Share Repurchase other than registration of
the offer and sale of the Securities under the Securities Act and other than as
required under the rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) (and
other than any necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Securities are being offered by
the Underwriter, as to which we express no opinion);
11. The
execution, delivery and performance by the Company of the Underwriting Agreement
and the consummation by the Company of the transactions contemplated thereby of
the Share Repurchase will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under (nor constitute any event
which with notice, lapse of time or both would result in any breach of or
constitute a default under) the Restated Certificate or By-laws, any applicable
United States federal law, the Delaware General Corporation Law or any New York
State law, rule, regulation or order of any New York, Delaware or federal
governmental agency or body or any court having jurisdiction over the Company
that, in our experience, is normally applicable to general business corporations
in relation to transactions of the type contemplated by the Underwriting
Agreement;
12. The
Company is not and, after giving effect to the offering and sale of the
Securities and the Share Repurchase, will not be an “investment company,” as
such term is defined in the Investment Company Act;
13. The
statements in the Company’s Annual Report on Form 10-K for the fiscal year ended
January 2, 2010, filed with the Commission on March 10, 2010, under the heading
“Risk Factors – Provisions in our amended and restated certificate of
incorporation and bylaws or Delaware law might discourage, delay or prevent a
change of control of our company or changes in our management and depress the
trading price of our common stock,” insofar as such statements constitute a
summary of documents or matters of law, are accurate in all material respects;
and
B-1-2
14. To
our knowledge, except as described in the Registration Statement or the
Prospectus, no person has the right, pursuant to the terms of any contract,
agreement or other instrument filed as an exhibit to the Registration Statement
or otherwise known to us, to cause the Company to register under the Securities
Act any shares of Common Stock or shares of any other capital stock or other
equity interest of the Company, or to include any such shares or interest in the
Registration Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the
Securities as contemplated thereby or otherwise.
In
addition, we have participated in conferences with certain officers and other
representatives of the Company, representatives of the Company’s independent
registered public accounting firm, representatives of the Underwriter,
representatives of the Underwriter’s counsel, representatives of the Selling
Stockholder and representatives of the Selling Stockholder’s counsel at which
the contents of the Registration Statement, the Base Prospectus and the
Prospectus were discussed and, although we are not passing upon, do not assume
any responsibility for, and have not independently checked or verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Base Prospectus or the Prospectus (except to the
extent set forth in enumerated paragraph 13 above), on the basis of the
foregoing, nothing has come to our attention that would lead us to believe that
(i) the Registration Statement (other than the financial statements and related
notes and schedules thereto and other financial and accounting data included in,
or omitted therefrom, as to which we express no belief), as of 9:00 a.m. New
York City time on March 11, 2010, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus
(other than the financial statements and related notes and schedules thereto and
other financial and accounting data included in, or omitted therefrom, as to
which we express no belief), as of the date the Prospectus Supplement and on the
date hereof contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) the Pricing Disclosure Package (other than the
financial statements and related notes and schedules thereto and other financial
and accounting data included in, or omitted therefrom, as to which we express no
belief), as of 9:00 a.m. New York City time on March 11, 2010, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and we do not know
of any legal or governmental proceedings required to be described in the
Registration Statement, the Base Prospectus or the Prospectus which are not
described as required or of any contracts or documents of a character required
to be described in the Registration Statement, the Base Prospectus or the
Prospectus or to be filed as exhibits to the Registration Statement which are
not described and filed as required.
X-0-0
XXXXXXX
X-0
FORM OF OPINION OF GENERAL
COUNSEL
1. The
Company and each of the New York Subsidiaries and Delaware Subsidiaries of the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of their properties
or the conduct of their business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect.
2. All
of the issued and outstanding shares of capital stock of the Company, including
the Stock, have been duly authorized and validly issued, are fully paid and
non-assessable and are, to my knowledge, free of contractual preemptive rights,
resale rights, rights of first refusal and similar rights.
3. All
of the outstanding shares of capital stock of each of the U.S. Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable and,
except as otherwise stated in the Registration Statement and the Prospectus, are
owned by the Company, in each case subject to no security interest, other
encumbrance or adverse claim except for any security interest, other encumbrance
or adverse claim described in the Registration Statement or pursuant to, or
contemplated by, any contract, agreement or instrument that is filed as an
exhibit to the Registration Statement; and, to my knowledge, no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of capital stock or
ownership interests in the U.S. Subsidiaries are outstanding.
4. The
execution, delivery and performance by the Company of the Underwriting Agreement
and the consummation by the Company of the transactions contemplated thereby and
the Share Repurchase will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under (nor constitute any event
which with notice, lapse of time or both would result in any breach of or
constitute a default under) the certificate of incorporation or by-laws of any
of the U.S. Subsidiaries, or any applicable United States federal law or New
York State law, rule, regulation or order of any governmental agency or body or
any court having jurisdiction over any U.S. Subsidiary that, in my experience,
is normally applicable to general business corporations in relation to
transactions of the type contemplated by the Underwriting Agreement, or any
material indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any material license, lease, contract or
other agreement or instrument to which the Company or any U.S. Subsidiary is a
party.
B-2-1
5. Neither
the Company nor any of the U.S. Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time, or
both would result in any breach of, or constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) its respective charter or by-laws or, to my knowledge,
any material indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any material license, lease, contract or
other agreement or instrument to which the Company or any of the U.S.
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or affected, or any law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the U.S.
Subsidiaries.
6. To
my knowledge, there are no actions, suits, claims, investigations or proceedings
pending, threatened or contemplated to which the Company or any of the
Subsidiaries or any of their respective directors or officers is a party or to
which any of their respective properties is subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required to be described
in the Registration Statement, the Base Prospectus or the Prospectus but are not
so described.
In
addition, I have participated in conferences with certain officers and other
representatives of the Company, representatives of the Company’s independent
registered public accounting firm, representatives of the Underwriter,
representatives of the Underwriter’s counsel, representatives of the Selling
Stockholder and representatives of the Selling Stockholder’s counsel at which
the contents of the Registration Statement, the Base Prospectus and the
Prospectus were discussed and, although I am not passing upon, do not assume any
responsibility for, and have not independently checked or verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Base Prospectus or the Prospectus, on the basis of
the foregoing, nothing has come to my attention that would lead me to believe
that (i) the Registration Statement (other than the financial statements and
related notes and schedules thereto and other financial and accounting data
included in, or omitted therefrom, as to which I express no belief), as of 9:00
a.m. New York City time on March 11, 2010, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the Prospectus
(other than the financial statements and related notes and schedules thereto and
other financial and accounting data included in, or omitted therefrom, as to
which I express no belief), as of the date the Prospectus Supplement and on the
date hereof contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) the Base Prospectus (other than the financial
statements and related notes and schedules thereto and other financial and
accounting data included in, or omitted therefrom, as to which I express no
belief), as of 9:00 a.m. New York City time on March 11, 2010, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and I do not know
of any legal or governmental proceedings required to be described in the
Registration Statement, Base Prospectus or the Prospectus which are not
described as required or of any contracts or documents of a character required
to be described in the Registration Statement, Base Prospectus or the Prospectus
or to be filed as exhibits to the Registration Statement which are not described
and filed as required.
X-0-0
XXXXXXX
X-0
FORM OF OPINION OF XXXXXX
& XXXXXXX LLP
1. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Selling Stockholder.
2. The
Selling Stockholder has limited partnership power and authority to enter into
the Underwriting Agreement.
3. The
execution and delivery of the Underwriting Agreement and the sale of the Shares
by the Selling Stockholder to you pursuant to the Underwriting Agreement do not
on the date hereof:
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(i)
|
violate
the Partnership Agreement; or
|
|
|
(ii)
|
violate
any federal or New York statute, rule or regulation applicable to the
Selling Stockholder; or
|
|
|
(iii)
|
require
any consents, approvals, or authorizations to be obtained by the Selling
Stockholder from, or any registrations, declarations or filings to be made
by the Selling Stockholder with, any governmental authority under any
federal or New York statute, rule or regulation, or the DLPA applicable to
the Selling Stockholder that have not been obtained or
made.
|
4. With
your consent, based solely on a review on [______] of the stock transfer records
of the Company and a review of the certificate representing the Shares set forth
on Schedule I hereto, the Selling Stockholder was the owner of record on that
date in the stock records of the Company of the Shares as set forth on Schedule
I hereto.
5. Upon
indication by book entry that the Shares listed on Schedule I hereto (the “Securities”)
have been credited to a securities account maintained by the Underwriter at the
Depository Trust Company (“DTC”) and
payment therefor in accordance with the Underwriting Agreement, the Underwriter
will acquire a security entitlement with respect to such Securities and, under
the NY UCC, an action based on an adverse claim to such securities entitlement,
whether framed in conversion, replevin, constructive trust, equitable lien or
other theory, may not be asserted against the Underwriter.
B-3-1
