THE GREENBRIER COMPANIES, INC. (an Oregon corporation) 3,000,000 Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION COPY
THE GREENBRIER COMPANIES, INC.
(an Oregon corporation)
3,000,000 Shares of Common Stock
Dated: December 13, 2010
THE GREENBRIER COMPANIES, INC.
(an Oregon corporation)
3,000,000 Shares of Common Stock
December 13, 2010
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Greenbrier Companies, Inc., an Oregon corporation (the “Company”), confirms its agreement
with ▇▇▇▇▇▇▇, Sachs & Co. ( the “Underwriter”), with respect to the sale by the Company and the
purchase by the Underwriter, of 3,000,000 shares of Common Stock, without par value per share, of
the Company (“Common Stock”). The aforesaid 3,000,000 shares of Common Stock to be purchased by the
Underwriter are herein called, the “Securities.”
The Company understands that the Underwriter proposes to make a public offering of the
Securities as soon as the Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a shelf registration statement on Form S-3 (File No. 333-165924), including the
related preliminary prospectus or prospectuses, covering the public offering and sale of certain
securities, including the Securities, under the Securities Act of 1933, as amended (the “1933
Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”). Such
registration statement, as of any time, means such registration statement as amended by any
post-effective amendments thereto to such time, including the exhibits and any schedules thereto at
such time, the documents incorporated or deemed to be incorporated by reference therein at such
time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a
part thereof as of such time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is
referred to herein as the “Registration Statement;” provided, however, that the Registration
Statement without reference to a time means such registration statement as amended by any
post-effective amendments thereto as of the time of the first contract of sale for the Securities,
which time shall be considered the “new effective date” of such registration statement with respect
to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and
schedules thereto as of such time, the documents incorporated or deemed incorporated by reference
therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise
deemed to be a part thereof as of such time pursuant to the Rule 430B. Each preliminary prospectus,
if any, used in connection with the offering of the Securities, including the documents
incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, are collectively referred to herein as a “preliminary prospectus.” Within the
time period required by Rule
424(b) under the 1933 Act Regulations (“Rule 424(b)”) after execution and delivery of this
Agreement, the Company will prepare and file a final prospectus relating to the Securities in
accordance with the provisions of Rule 424(b). The final prospectus, in the form first furnished
or made available to the Underwriter for use in connection with the offering of the Securities,
including the documents incorporated or deemed to be incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.”
For purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to be the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“▇▇▇▇▇”).
As used in this Agreement:
“Applicable Time” means 7:00 A.M., New York City time, on December 14, 2010, or such
other time as agreed by the Company and the Underwriter.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses
issued at or prior to the Applicable Time, the prospectus (including any documents
incorporated therein by reference) that is included in the Registration Statement as of the
Applicable Time and the information included on Schedule B-1 hereto, all considered
together.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation
any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”)) relating to the Securities that is (i) required to be filed with the Commission by
the Company, (ii) a “road show that is a written communication” within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from
filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description
of the Securities or of the offering that does not reflect the final terms, in each case in
the form filed or required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a “bona fide
electronic road show,” as defined in Rule 433), as evidenced by its being specified in
Schedule B-2 hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all
such financial statements and schedules and other information incorporated or deemed incorporated
by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, prior to the Applicable Time; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (collectively, the “1934 Act”), incorporated
or deemed to be incorporated by reference in the Registration Statement, the preliminary prospectus
or the Prospectus, as the case may be, at or after the Applicable Time.
2
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants
to the Underwriter as of the date hereof, the Applicable Time and the Closing Time (as defined
below), and agrees with the Underwriter, as follows:
(i) Registration Statement and Prospectuses.
The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any post-effective amendment thereto has become effective under the 1933
Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of
any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those
purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The
Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the
time it became effective and at each deemed effective date with respect to the Underwriter
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus (including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto), at the
time it was filed, and the Prospectus complied in all material respects with the 1933 Act
and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriter for
use in connection with this offering was and the Prospectus was or will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, any preliminary prospectus and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(ii) Accurate Disclosure. Neither the Registration Statement nor any
amendment thereto, at its effective time or at the Closing Time, contained, contains or
will contain an untrue statement of a material fact or omitted, omits or will omit to state
a material fact required to be stated therein or necessary to make the statements therein
not misleading. As of the Applicable Time, neither (A) the General Disclosure Package nor
(B) any individual Issuer Limited Use Free Writing Prospectus, when considered together
with the General Disclosure Package, included, includes or will include an untrue statement
of a material fact or omitted, omits or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto
(including any prospectus wrapper), as of its issue date, at the time of any filing with
the Commission pursuant to Rule 424(b), at the Closing Time, included, includes or will
include an untrue statement of a material fact or omitted, omits or will omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, at the time the Registration Statement became
effective or when such documents incorporated by reference were filed with the Commission,
as the case may be, when read together with the other information in the Registration
Statement, the General Disclosure Package or the Prospectus, as the case may be, did not
and will not include an untrue
3
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
The representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement (or any amendment thereto), the General Disclosure
Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in
conformity with written information furnished to the Company by the Underwriter expressly for use
therein. For purposes of this Agreement, the only information so furnished shall be the information
in the fifth and sixth paragraphs under the heading “Underwriter,” in each case in the Prospectus
(collectively, the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or
will conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein, and any preliminary or other prospectus
deemed to be a part thereof that has not been superseded or modified.
(iv) Company Not Ineligible Issuer. At the time of filing the Registration Statement
and any post-effective amendment thereto, 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
1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405, without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an
ineligible issuer.
(v) Independent Accountants. The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are independent registered public
accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations and the Public Company Accounting Oversight Board.
(vi) Financial Statements; Non-GAAP Financial Measures. The financial statements
included or incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus, together with the related schedules and notes, present fairly, in all material
respects, the financial position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders’ equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved. The supporting schedules, if any, present fairly,
in all material respects, in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly, in all material
respects, the information shown therein and have been compiled on a basis consistent with that of
the audited financial statements included therein. Except as included therein, no historical or
pro forma financial statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement, the General Disclosure Package or the Prospectus under
the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement,
the General Disclosure Package or the Prospectus, or incorporated by reference therein, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act,
to the extent applicable.
4
(vii) No Material Adverse Change in Business. Except as otherwise stated therein,
since the respective dates as of which information is given in the Registration Statement, the
General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the
business, properties, financial condition, results of operation or prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one enterprise, and (C)
there has been no dividend or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(viii) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Oregon and has
corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the General Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(ix) Good Standing of Subsidiaries. Each subsidiary of the Company listed on Exhibit
21.1 to the Company’s Form 10-K filed for the fiscal year ended August 31, 2010 has been duly
organized or formed and is validly existing in good standing under the laws of the jurisdiction of
its incorporation or organization, has corporate or similar power and authority to own, lease and
operate its properties and to conduct its business as described in the General Disclosure Package
and the Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the
General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock or
other equity or ownership interest of each subsidiary listed on Exhibit 21.1 to the Company’s Form
10-K filed for the fiscal year ended August 31, 2010 has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries in
each case free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity except as described in the General Disclosure Package and the Prospectus. None of the
outstanding shares of capital stock or other equity or ownership interest of any subsidiary listed
on Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended August 31, 2010 was issued in
violation of the preemptive or similar rights of any securityholder or other economic owner of such
subsidiary. The Company has no material subsidiaries other than the subsidiaries listed on Exhibit
21.1 to the Company’s Form 10-K filed for the fiscal year ended August 31, 2010, and the only
subsidiaries that constitute a “significant subsidiary,” as defined in Rule 1-02 of Regulation S-X,
are the subsidiaries listed on Exhibit A hereto.
(x) Capitalization. The authorized, issued and outstanding shares of capital stock of
the Company are as set forth in the General Disclosure Package and the Prospectus in the column
entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred
to in the General Disclosure Package and the Prospectus or pursuant to the exercise of warrants,
convertible securities, options or preferred stock purchase rights referred to in the General
Disclosure Package and the Prospectus). The outstanding shares of capital stock of the
5
Company have been duly authorized and validly issued and are fully paid and non-assessable. None of
the outstanding shares of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(xi) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(xii) Authorization and Description of Securities. The Securities to be purchased by
the Underwriter from the Company have been duly authorized for issuance and sale to the Underwriter
pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and fully paid and
non-assessable; and the issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company. The Common Stock conforms to all statements
relating thereto contained in the General Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments defining the same. No holder of
Securities will be subject to personal liability by reason of being such a holder.
(xiii) Registration Rights. There are no persons with registration rights or other
similar rights to have any securities registered for sale pursuant to the Registration Statement
that have not been waived. There are no persons with registration rights or other similar rights to
have any securities registered for sale by the Company under the 1933 Act, other than those rights
that have been disclosed in the General Disclosure Package and the Prospectus and have been waived
or have not been exercised.
(xiv) Absence of Violations, Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is (A) in violation of its charter, by-laws or similar organizational document,
(B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the properties or assets of the
Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such
defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in
violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator,
court, governmental body, regulatory body, administrative agency or other authority, body or agency
having jurisdiction over the Company or any of its subsidiaries or any of their respective
properties, assets or operations (each, a “Governmental Entity”), except as disclosed in the
Company’s Form 10-K for the fiscal year ended August 31, 2010 under Item 1a “Risk Factors—We have
potential exposure to environmental liabilities, which could increase our costs or have an adverse
effect on results of operations” and except for such violations that would not, singly or in the
aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and in the General
Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described therein under the caption “Use of
Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not, singly or in the aggregate, result in a
6
Material Adverse Effect), nor will such action result in any violation of the provisions of the
charter, by-laws or similar organizational document of the Company or any of its subsidiaries or
any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As
used herein, a “Repayment Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
(xv) Employee Benefit Plans. No nonexempt “prohibited transaction” (as defined in
either Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder (“ERISA”) or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the “Code”)), that would reasonably be expected
to have a Material Adverse Effect on the Company, has occurred with respect to any employee benefit
plan for which the Company or any of its subsidiaries would have any liability; each employee
benefit plan for which the Company or any of its subsidiaries would have any liability is in
compliance in all material respects with applicable law, including (without limitation) ERISA and
the Code; neither the Company nor any of its subsidiaries maintains or has within the preceding six
years maintained any employee benefit plans as such term is defined in Section 3(3) of ERISA that
are subject to Title IV of ERISA; and each plan for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is the subject of a favorable
determination, notification, advisory, or opinion letter from the IRS, is qualified and nothing has
occurred, whether by action or by failure to act, which would reasonably be expected to cause the
loss of such qualification. The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated by the General Disclosure Package and the Prospectus
do not and will not involve any prohibited transaction within the meaning of Section 406 of ERISA
or Section 4975 of the Code that would reasonably be expected to have a Material Adverse Effect on
the Company.
(xvi) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the subcontracted labor at any of the
Company’s facilities or the employees of any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case, would result in a Material Adverse
Effect.
(xvii) Absence of Proceedings. Except as disclosed in the General Disclosure Package
and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or
brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which would result in a Material
Adverse Effect, or which might materially and adversely affect their respective properties or
assets or the consummation of the transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any such subsidiary is a party or of which any of their
respective properties or assets is the subject which are not described in the General Disclosure
Package and the Prospectus, including ordinary routine litigation incidental to the business, would
not result in a Material Adverse Effect.
(xviii) Accuracy of Exhibits. There are no contracts or documents which are required
to be described in the Registration Statement or to be filed as exhibits thereto which have not
been so described and filed as required.
7
(xix) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any Governmental Entity is
necessary or required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or the consummation of
the transactions contemplated by this Agreement, except such as have been already obtained or as
may be required to be obtained by the Underwriter in connection with the transactions contemplated
hereby under the 1933 Act, the 1933 Act Regulations, the rules of the New York Stock Exchange,
state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xx) Possession of Licenses and Permits. The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now
operated by them, except where the failure so to possess would not, singly or in the aggregate,
result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the
terms and conditions of all Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would not, singly or in
the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or modification of any
Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxi) Title to Property. The Company and its subsidiaries have good and marketable
title to all material real property owned by them and good title to all other properties owned by
them, which is, singly or in the aggregate, material to the business of the Company, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (A) are described in the General Disclosure Package and the
Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property
and do no interfere with the use made and proposed to be made of such property by the Company or
any of its subsidiaries; and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under which the Company or any of
its subsidiaries leases properties described in the General Disclosure Package and the Prospectus,
are in full force and effect, and neither the Company nor any such subsidiary has received written
notice of any claim that has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above that would be material to the
Company and its subsidiaries as one enterprise if adversely determined.
(xxii) Possession of Intellectual Property. The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent applications, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks, trade names, trademark registrations, service ▇▇▇▇ registrations, formulae, customer lists
or other intellectual property (collectively, “Intellectual Property”) necessary or used to carry
on the business now operated by them except where the failure to so own, possess, or license or
have other rights to use or acquire would not result in a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise aware of any
infringement, violation or misappropriation of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or any of its
8
subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect. To the Company’s knowledge, the Company has taken commercially
reasonable steps to keep confidential all material technical information of significant economic
value developed by and belonging to the Company or any of its subsidiaries which has not been
patented which the Company intended to keep confidential. Except as described in the General
Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has granted
or assigned to any other person or entity any right to manufacture, have manufactured, assemble or
sell the current products and services of the Company and its subsidiaries or those products and
services described in the General Disclosure Package and the Prospectus except as would not
materially adversely affect the Company. Except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (x) the Company is not aware of any infringement by third parties of
any Intellectual Property of the Company or any of its subsidiaries; (y) there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the
Company’s or any of its subsidiaries’ ownership of or rights in or to any of the Company’s
Intellectual Property (if the subject of an unfavorable decision, ruling or finding); and (z) there
is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any of its subsidiaries infringes, misappropriates or otherwise violates
any Intellectual Property of others, and the Company is unaware of any fact that would form a
reasonable basis for any such claim. Neither the Company nor any of its subsidiaries is in
material breach or violation of any license or other agreement that relates to any Intellectual
Property owned or used by the Company or any of its subsidiaries and, to the Company’s knowledge,
no other party to any such agreement is in material breach thereof.
(xxiii) Environmental Laws. Except as described in the General Disclosure Package and
the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B)
the Company and its subsidiaries have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their requirements, (C) there are no
pending or, to the Company’s knowledge, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its subsidiaries (D)
neither the Company nor any of its subsidiaries has agreed contractually to indemnify any past or
current owner or operator of any property currently owned or operated by the Company or any of its
subsidiaries, for liability related to the prior ownership or operation of such property, under any
Environmental Law, including any obligation for cleanup or remedial action and (E) to the Company’s
knowledge, there are no events or circumstances that would reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding by any private party or
Governmental Entity, against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
9
(xxiv) Accounting Controls and Disclosure Controls. The Company and each of its
subsidiaries maintain effective internal control over financial reporting (as defined under Rule
13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the General Disclosure Package and the Prospectus, since the
end of the Company’s most recent audited fiscal year there has been (1) no material weakness in the
Company’s internal control over financial reporting required to be disclosed under the 1934 Act
(whether or not remediated) and (2) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company and each of its subsidiaries maintain an
effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15
under the 1934 Act Regulations) that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and
forms, and is accumulated and communicated to the Company’s management, including its principal
executive officer or officers and principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure.
(xxv) Payment of Taxes. Except, in each case, as would not result in a Material
Adverse Effect, all United States federal income tax returns of the Company and its subsidiaries
required by law to be filed have been filed (or the Company or its subsidiaries has duly requested
extensions to such filings), and all taxes shown by such returns or otherwise assessed, which are
due and payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The United States federal
income tax returns of the Company through the fiscal year ended August 31, 2003 have been closed
and no unpaid assessment in connection therewith has been made against the Company. The Company and
its subsidiaries have filed all other tax returns, or permitted extensions, that are required to
have been filed by them pursuant to applicable foreign, state, local or other law except insofar as
the failure to file such returns (or extensions) would not result in a Material Adverse Effect, and
has paid all taxes due pursuant to such returns or pursuant to any assessment received by the
Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been established by the Company. The charges, accruals and
reserves on the books of the Company in respect of any income and corporation tax liability for any
years not finally determined are adequate to meet any assessments or reassessments for additional
income tax for any years not finally determined, except to the extent of any inadequacy that would
not result in a Material Adverse Effect.
(xxvi) Insurance. Except, in each case, as would not result in a Material Adverse
Effect, the Company and its subsidiaries carry or are entitled to the benefits of insurance, with
financially sound and reputable insurers, in such amounts and covering such risks which the Company
reasonably believes is adequate, and all such insurance is in full force and effect. The Company
believes that it or any of its subsidiaries will be able (A) to renew its existing insurance
coverage as and when such policies expire or (B) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now conducted and at a
cost that would not result in a Material Adverse Effect. The Company has in effect insurance
covering the Company, its directors and officers for liabilities or losses arising in connection
with the offer and
10
sale of the Securities, including, liabilities or losses arising under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations and applicable foreign securities laws.
(xxvii) Investment Company Act. The Company is not required, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds therefrom as
described in the General Disclosure Package and the Prospectus will not be required, to register as
an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxviii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action
which is designed, or would be expected, to cause or result in, or which has constitutes, the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or
resale of the Securities.
(xxix) Foreign Corrupt Practices Act. None of the Company, any of its subsidiaries or,
to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and the Company has taken steps to institute
and maintain reasonable policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(xxx) Money Laundering Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding
by or before any Governmental Entity involving the Company or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxi) OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or
otherwise make available such proceeds to any of its subsidiaries, joint venture partners or other
person, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
11
(xxxii) Lending Relationship. Except as disclosed in the General Disclosure
Package or the Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of the Underwriter and (ii) does not
currently intend to use any of the proceeds from the sale of the Securities to repay any
outstanding debt owed to any affiliate of the Underwriter.
(xxxiii) Regulation. The Company and its subsidiaries have all material
certifications required by the Association of American Railroads (“AAR”) as a railcar
builder, repair and refurbishment facility and component manufacturer, and products sold
and leased by the Company and its subsidiaries in North America meet applicable AAR,
Transport Canada and Federal Railroad Administration standards in all material respects.
(xxxiv) Statistical, Industry-Related and Market-Related Data. Any
statistical, industry-related and market-related data included in the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company reasonably
believes to be reliable and accurate and, to the extent required, the Company has obtained
the consent to the use of such data from such sources, or otherwise represent the Company’s
reasonable estimates determined in good faith.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase price per share
of $21.06, the number of securities set forth opposite the name of the Underwriter on Schedule A
hereto.
(b) Offering Terms. Upon the authorization by you of the release of the Securities, the
Underwriter proposes to offer the Securities for sale upon the terms and conditions set forth in
the Prospectus at the price per share set forth on Schedule B-1 hereto.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Underwriter and
the Company, at 9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after
4:30 P.M. (New York City time) on any given day) business day after the date hereof, or such other
time not later than ten business days after such date as shall be agreed upon by the Underwriter
and the Company (such time and date of payment and delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the Underwriter for the account of the
Underwriter of certificates for the Securities to be purchased by the Underwriter.
(d) Delivery of the Securities. Delivery of the Securities shall be made through the
facilities of the Depository Trust Company unless the Underwriter shall otherwise instruct. Time
shall be of the essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Underwriter.
12
SECTION 3. Covenants of the Company. The Company covenants with the Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject
to Section 3(b), will comply with the requirements of Rule 430B, and will notify the Underwriter
promptly, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective or any amendment or supplement to the Prospectus
shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, including any document incorporated by reference therein or for
additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment or of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the
offering of the Securities. The Company will effect all filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and
will take such steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any
such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the General Disclosure
Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but
for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required
by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriter or for the Company, to (i) amend the Registration Statement in order that the
Registration Statement will not include 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, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that
the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the
General Disclosure Package or the Prospectus, as the case may be, in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the
Underwriter notice of such event, (B) prepare any amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to
any proposed filing or use, furnish the Underwriter with copies of any such amendment or supplement
and (C) file with the Commission any such amendment or supplement; provided that the Company shall
not file or use any such amendment or supplement to which the Underwriter or counsel for the
Underwriter shall reasonably object. The Company will furnish to the Underwriter such number of
copies of such amendment or supplement as the Underwriter may reasonably request. The Company has
given the Underwriter notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the Underwriter notice of its
intention to make any such filing from the Applicable Time to the Closing Time and will
furnish the Underwriter with copies of any such
13
documents a reasonable amount of time prior to such proposed filing, as the case may be, and will
not file or use any such document to which the Underwriter or counsel for the Underwriter shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration
Statement as originally filed and each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Underwriter, without charge, a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) for the Underwriter. The copies of
the Registration Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to the Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to the Underwriter, without charge, during the period when a prospectus
relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required
to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the Underwriter may designate and
to maintain such qualifications in effect so long as required to complete the distribution of the
Securities; provided, however, that the Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(f) Rule 158. The Company will timely file such reports pursuant to the 1934 Act and the 1934
Act Regulations as are necessary in order to make generally available to its securityholders as
soon as practicable an earnings statement for the purposes of, and to provide to the Underwriter
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the General Disclosure Package and the Prospectus under “Use
of Proceeds.”
(h) Listing. The Company will use its best efforts to list the Securities on the New York
Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 90 days from the date of the
Prospectus (the “Lock-Up Period”) the Company will not, without the prior written consent of the
Underwriter (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with
14
respect to any of the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B)
any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (C) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to existing employee benefit plans of the
Company, including with respect to the 2005 Stock Incentive Plan as such plan may be amended at the
Annual Meeting of Stockholders scheduled to be held on January 7, 2011 (including any adjournment
or postponement thereof), (D) any shares of Common Stock issued pursuant to any existing
non-employee director stock plan of the Company or (E) any shares of Common Stock issued in
connection with strategic relationships or acquisitions of businesses, technologies or products,
provided however, that any such issuance in connection with strategic relationships or acquisitions
of businesses, technologies or products does not exceed 5% of the shares of Common Stock
outstanding immediately prior to such issuance. Nothing in this Section 3(i) shall prevent the
Company from filing any registration statements on Form S-8 or S-4 relating to the issuance of
securities pursuant to clauses (A), (B), (C), (D) or (E) set forth in this Section 3(i) or the
exercise of registration rights set forth in the Investor Rights and Restrictions Agreement dated
June 10, 2009 among the Company and the other parties thereto.
(j) Reporting Requirements. The Company, during the period when a Prospectus relating to the
Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered
under the 1933 Act, will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
(k) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the prior
written consent of the Underwriter, it will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission
or retained by the Company under Rule 433; provided, that the Underwriter will be deemed to have
consented to the Issuer Free Writing Prospectuses listed on Schedule B-2 hereto and any “road show
that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by
the Underwriter. The Company represents that it has treated or agrees that it will treat each such
free writing prospectus consented to, or deemed consented to, by the Underwriter as an “issuer free
writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the
applicable requirements of Rule 433 with respect thereto, including timely filing with the
Commission where required, legending and record keeping. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at that subsequent time, not
misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
| SECTION 4. Payment of Expenses. |
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and exhibits) as originally
filed and each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriter of copies of each
15
preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments
or supplements thereto and any costs associated with electronic delivery of any of the foregoing to
the Underwriter, (iii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriter, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the Underwriter, (iv) the
fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the
Underwriter in connection therewith and up to $25,000 in connection with the preparation of the
Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or
registrar for the Securities, (vii) the fees and expenses incurred in connection with the listing
of the Securities on the New York Stock Exchange and (viii) the costs and expenses (including,
without limitation, any damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the Securities made by the
Underwriter caused by a breach of the representation contained in the third sentence of Section
1(a)(ii).
(b) Termination of Agreement. If this Agreement is terminated by the Underwriter, the Company
shall reimburse the Underwriter for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of
Registration Statement. The Registration Statement has become effective and at the Closing Time no
stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of
any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those
purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the
Company has complied with each request (if any) from the Commission for additional information.
(b) Opinion of Counsel for Company. At the Closing Time, the Underwriter shall have received
the favorable opinions, dated the Closing Time and in form and substance satisfactory to counsel
for the Underwriter, of (i) Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel for
the Company and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇, general counsel for the Company.
(c) Opinion of Counsel for Underwriter. At Closing Time, the Underwriter shall have received
the favorable opinion, dated the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriter.
(d) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the General Disclosure
Package or the Prospectus, any material adverse change in the business, properties, financial
condition, results of operation or prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the Underwriter shall
have received a certificate of the Chief Executive Officer or the President of the Company and of
the chief financial or chief accounting officer of the Company, dated the Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the representations and
warranties of the Company in this Agreement are true and
16
correct with the same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time in all material respects, and (iv) no stop
order suspending the effectiveness of the Registration Statement under the 1933 Act has been
issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are pending
or, to their knowledge, contemplated.
(e) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Underwriter shall have received from Deloitte & Touche LLP a letter, dated such date, in form and
substance satisfactory to the Underwriter, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriter shall have received from
Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to the Closing
Time.
(g) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of issuance.
(h) Lock-up Agreements. At the date of this Agreement, the Underwriter shall have received an
agreement substantially in the form of Exhibit B hereto signed by the persons listed on Schedule C
hereto.
(i) Maintenance of Rating. Since the execution of this Agreement, there shall not have been
any decrease in or withdrawal of the rating of any securities of the Company or any of its
subsidiaries by any “nationally recognized statistical rating organization” (as defined for
purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential
decrease in or withdrawal of any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(j) [Intentionally omitted.]
(k) Additional Documents. At the Closing Time counsel for the Underwriter shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
(l) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, may be terminated by the
Underwriter by notice to the Company at any time at or prior to Closing Time and such termination
shall be without liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7, 8, 15 and 16 shall survive any such termination and remain in full
force and effect.
17
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and hold harmless the
Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an
“Affiliate”)), its selling agents and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including any information deemed to be part thereof pursuant to Rule
430B, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any preliminary prospectus,
any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of one counsel (other than local counsel) chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in the Registration Statement (or any amendment thereto), including any
information deemed to be part thereof pursuant to Rule 430B, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the
Underwriter Information.
(b) Indemnification of Company, Directors and Officers. The Underwriter agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including any information deemed to
be part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
18
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Underwriter and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and of the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the
one hand, and the total underwriting discount received by the Underwriter, on the other hand, bear
to the aggregate public offering price of the Securities.
19
The relative fault of the Company, on the one hand, and the Underwriter, on the other hand,
shall be determined by reference to, among other things, whether any such 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 or by the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were sold to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the Company
or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of the Underwriter or its
Affiliates or selling agents, any person controlling the Underwriter, its officers or directors, or
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Underwriter, in its absolute discretion, may terminate this Agreement
without liability to the Company, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the General Disclosure Package or the Prospectus, any
material adverse change in the business, properties, financial condition, results of operation or
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of
20
the Underwriter, impracticable or inadvisable to proceed with the completion of the offering or to
enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New York Stock Exchange,
or (iv) if trading generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges
or by order of the Commission, FINRA or any other governmental authority, or (v) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking
moratorium has been declared by any Federal or state authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7, 8, 15 and 16 shall survive such termination and remain
in full force and effect.
SECTION 10. [Intentionally omitted.]
SECTION 11. Default by the Company. If the Company shall fail at the Closing Time to sell the
number of Securities that it is obligated to sell hereunder, then this Agreement shall terminate
without any liability on the part of any nondefaulting party; provided, however, that the
provisions of Sections 1, 4, 6, 7, 8, 15 and 16 shall remain in full force and effect. No action
taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriter shall be directed to ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: Registration Department, with a copy to ▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and with a copy to ▇▇▇▇,
Hastings, Janofsky, & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and to ▇▇▇▇▇▇ ▇▇▇▇ LLP,
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriter to
properly identify its clients.
SECTION 13. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this Agreement, including the determination
of the initial public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter,
on the other hand, (b) in connection with the offering of the Securities and the process leading
thereto, the Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company, any of its subsidiaries or their respective shareholders, creditors,
employees or any other party, (c) the Underwriter has not assumed and will not assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering of the Securities
or the process leading thereto (irrespective of whether the Underwriter has advised or is currently
advising the Company or any of its subsidiaries on other matters) and the Underwriter does not have
any obligation to the Company with respect to the offering of the Securities except the obligations
expressly set forth in this Agreement, (d) the Underwriter and its
21
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (e) the Underwriter has not provided any legal, accounting, regulatory or
tax advice with respect to the offering of the Securities and the Company has consulted its own
respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding upon the
Underwriter and the Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or corporation, other than the
Underwriter and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to
be for the sole and exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Securities from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 15. Trial by Jury. The Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its shareholders and affiliates) and the Underwriter hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER
OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF,
THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 19. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.
22
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriter and the Company in accordance with its terms.
| Very truly yours, THE GREENBRIER COMPANIES, INC. |
||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Senior Vice President, | ||||
| General Counsel and Chief Compliance Officer | ||||
|
CONFIRMED AND ACCEPTED, as of the date first above written: ▇▇▇▇▇▇▇, SACHS & CO. |
||||
| By | /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | |||
| (▇▇▇▇▇▇▇, Sachs & Co.) | ||||
SCHEDULE A
| Number of | ||||
| Name of Underwriter | Securities | |||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co |
3,000,000 | |||
Sch A
SCHEDULE B-1
Pricing Terms
1. The Company is selling 3,000,000 shares of Common Stock.
2. The “public offering price” per share for the Securities shall be the prices per share to be paid by individual purchasers.
Sch B-1
SCHEDULE B-2
Free Writing Prospectuses
Free Writing Prospectus, Filed December 13, 2010 Pursuant to Rule 433, Registration Statement
333-165924
Sch B-2
SCHEDULE C
List of Persons and Entities Subject to Lock-up
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Centurion
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇’▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
WLR IV Parallel ESC, L.P.
WLR Recovery Fund IV, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Centurion
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇’▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
WLR IV Parallel ESC, L.P.
WLR Recovery Fund IV, L.P.
Sch C
Exhibit A
SIGNIFICANT SUBSIDIARIES
Greenbrier Leasing Company LLC
Meridian Rail Acquisition Corporation
▇▇▇▇▇▇▇▇▇ Marine LLC
Ex A
Exhibit B
FORM OF LOCK-UP AGREEMENT
December 13, 2010
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by The Greenbrier Companies, Inc.
Dear Sirs:
The undersigned, a shareholder and an officer and/or director of The Greenbrier Companies,
Inc., an Oregon corporation (the “Company”), understands that ▇▇▇▇▇▇▇, Sachs & Co. (the
“Underwriter”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with the Company providing for the public offering (the “Offering”) of shares (the “Securities”) of
the Company’s common stock, without par value (the “Common Stock”). In recognition of the benefit
that such an offering will confer upon the undersigned as a shareholder and an officer and/or
director of the Company, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned agrees, subject to the terms and conditions set
forth herein, with each underwriter to be named in the Underwriting Agreement that, during a period
of 90 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will
not, without the prior written consent of the Underwriter, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company’s Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires the power of
disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the
registration of any of the Lock-up Securities, or file or cause to be filed any registration
statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap
or transaction is to be settled by delivery of Common Stock or other securities, in cash or
otherwise.
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of the Underwriter, provided that
(1) the Underwriter receives a signed lock-up agreement for the balance of the Lock-Up Period from
each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) such transfers are not required to be reported with the
Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities
Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any
public filing or report regarding such transfers:
| (i) | as a bona fide gift or gifts; or | ||
| (ii) | by testate or intestate succession; or |
Ex B
| (iii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or | ||
| (iv) | as a distribution to members, limited partners or stockholders of the undersigned; or | ||
| (v) | if the undersigned holds the Lock-Up Securities as a trustee of a trust, to such trust’s beneficiaries; or | ||
| (vi) | to the undersigned’s direct or indirect affiliates or subsidiaries or to any investment fund or other entity controlled or managed by the undersigned. |
Furthermore, during the Lock-Up Period the undersigned may sell shares of Common Stock of the
Company purchased by the undersigned on the open market following the Offering if and only if (i)
such sales are not required to be reported in any filing under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and (ii) the undersigned does not otherwise voluntarily effect any
public filing or report regarding such sales pursuant to the Exchange Act.
Notwithstanding anything herein to the contrary, the foregoing shall not be deemed to restrict
the undersigned with respect to (1) the exercise (including any cashless exercise involving the
transfer of securities between the undersigned and the Company) of options or warrants issued by
the Company to the undersigned to acquire Lock-Up Securities; provided that any Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock issuable upon exercise
or settlement of such options and warrants shall be subject to the provisions of this letter, (2)
the withholding of Lock-Up Securities by the Company in connection with the vesting of restricted
stock held by the undersigned as of the date of the Underwriting Agreement, (3) transactions which
occur in connection with, or after, the termination of the undersigned’s employment by, or service
to, the Company or any of its subsidiaries and which disposition or sale of such Lock-Up Securities
does not require a filing under Section 16 of the Exchange Act, (4) the entering into any written
trading plan or agreement (“Rule 10b5-1 Plan”) with a broker designed to comply with Rule
10b5-1(c)(1) promulgated pursuant to the Exchange Act, provided that any such Rule 10b5-1 Plan
shall specify that any sales of Lock-Up Securities sold for the undersigned’s benefit pursuant to
the Rule 10b5-1 Plan shall not occur prior to the expiration of the Lock-Up Period and provided
further that such action does not trigger any public filing requirement and the undersigned does
not make any such public filing, or (5) the disposition or sale of any Lock-Up Securities pursuant
to any existing contract, instruction or plan entered into pursuant to Rule 10b5-1 Plan in
existence as of the date hereof.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
This letter agreement shall automatically terminate and the undersigned shall be released from
his or her or its obligations hereunder if any of the following occurs: (i) the Company notifies
you in writing that it does not intend to proceed with the Offering of the Securities; or (ii) for
any reason after the execution of the Underwriting Agreement, the Underwriting Agreement shall be
terminated (other than the provisions thereof that survive termination) prior to the consummation
of the purchase of the Securities in accordance with the terms of the Underwriting Agreement.
Ex B
| Very truly yours, | ||||||
| Signature: | ||||||
| Print Name: | ||||||
Ex B