EXHIBIT 1.1
BEACON ROOFING SUPPLY, INC.
_____Shares of Common Stock
UNDERWRITING AGREEMENT
, 2004
------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Beacon Roofing Supply, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of _______ shares, of common stock, par
value $ .01 per share (the "Common Stock"), of the Company, and the
stockholders of the Company named in Schedule II and Schedule III hereto (the
"Selling Stockholders") propose to sell to the Underwriters an aggregate of
_________ shares and, at the option of the Underwriters, up to additional
___________ shares of Common Stock. The aggregate of _________ shares to be
sold by the Company and the Selling Stockholders is herein called the
"Underwritten Shares" and the aggregate of ___________ additional shares to
be sold by the Selling Stockholders is herein called the "Option Shares". The
Underwritten Shares and the Option Shares are herein referred to as the
"Shares".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. REGISTRATION STATEMENT. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (File No.
333-110627) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it becomes effective, including the
information, if
any, deemed pursuant to Rule 430A under the Securities Act to be part of the
registration statement at the time of its effectiveness ("Rule 430
Information"), is referred to herein as the "Registration Statement"; and as
used herein, the term "Preliminary Prospectus" means each prospectus included
in such registration statement (and any amendments thereto) before it becomes
effective, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430A Information,
and the term "Prospectus" means the prospectus in the form first used to
confirm sales of the Shares. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement and the
Prospectus.
2. PURCHASE OF THE SHARES BY THE UNDERWRITERS. (a) The Company and
certain of the Selling Stockholders agree, as and to the extent indicated in
Schedule II hereto, severally and not jointly, to sell the Shares to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company and certain of the Selling Stockholders, as and to the
extent indicated in Schedule II hereto, at a purchase price per share of $[ ]
(the "Purchase Price") the number of Underwritten Shares (to be adjusted by you
so as to eliminate fractional shares) determined by multiplying the aggregate
number of Underwritten Shares to be sold by the Company and certain of the
Selling Stockholders as set forth opposite their respective names in Schedule II
hereto by a fraction, the numerator of which is the aggregate number of
Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the aggregate number of Underwritten Shares to be purchased by all the
Underwriters from the Company and all the Selling Stockholders hereunder. The
public offering price of the Shares is not in excess of the price recommended by
▇. ▇. ▇▇▇▇▇▇ Securities Inc. ("▇. ▇. ▇▇▇▇▇▇"), acting as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Rules of Conduct
of the National Association of Securities Dealers, Inc.
In addition, certain of the Selling Stockholders, as and to the extent
indicated in Schedule III hereto agree, severally and not jointly, to sell the
Option Shares to the several Underwriters and the Underwriters shall have the
option to purchase at their election up to [____] Option Shares at the Purchase
Price. The Underwriters, on the basis of the representations and warranties
herein contained and subject to the conditions hereinafter stated, shall have
the option to purchase, severally and not jointly, from certain of the Selling
Stockholders at the Purchase Price that portion of the number of Option Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of Option
Shares by a fraction the numerator of which is the maximum number of Option
Shares which such Underwriter is entitled to purchase and the denominator of
which is the maximum number of Option Shares which all of the Underwriters are
entitled to purchase hereunder. Any such election to purchase Option Shares
shall be made in proportion to the maximum number of Option Shares to be sold by
each Selling Stockholder as set forth in Schedule III hereto.
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The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than twice) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Attorney-in-Fact (as defined below). Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date
and time when the Option Shares are to be delivered and paid for which may be
the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date nor later than the tenth full business day
(as hereinafter defined) after the date of such notice (unless such time and
date are postponed in accordance with the provisions of Section 11 hereof). Any
such notice shall be given at least two Business Days prior to the date and time
of delivery specified therein.
(b) The Company and the Selling Stockholders understand that the
Underwriters intend to make a public offering of the Shares as soon after the
effectiveness of this Agreement as in the judgment of the Representatives is
advisable, and initially to offer the Shares on the terms set forth in the
Prospectus. The Company and the Selling Stockholders acknowledge and agree that
the Underwriters may offer and sell Shares to or through any affiliate of an
Underwriter and that any such affiliate may offer and sell Shares purchased by
it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in
immediately available funds to the accounts specified to the Representatives by
the Company, by Code, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P. ("CHS") and by the
Attorney-in-Fact (as defined below), at the offices of [_______] at 10:00 A.M.
New York City time on _____, 2004, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing or, in the case of the
Option Shares, on the date and at the time and place specified by the
Representatives in the written notice of the Underwriters' election to purchase
such Option Shares. The time and date of such payment for the Underwritten
Shares are referred to herein as the "Closing Date" and the time and date for
such payment for the Option Shares, if other than the Closing Date, are herein
referred to as the "Additional Closing Date".
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date in definitive form registered in such
names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the
Additional Closing Date, as the case may be, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the Company or the Selling
Stockholders, as the case may be. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of
▇.▇. ▇▇▇▇▇▇ set forth above not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date or the Additional Closing Date, as the
case may be.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter and the Selling Stockholders that:
(a) PRELIMINARY PROSPECTUS. No order preventing or suspending the use
of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus.
(b) REGISTRATION STATEMENT AND PROSPECTUS. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and no proceeding for that purpose has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement complied and will comply
in all material respects with the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; PROVIDED
that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto.
(c) FINANCIAL STATEMENTS. The financial statements and the related
notes thereto included in the Registration Statement and the Prospectus comply
in all material respects with the applicable requirements of the Securities Act
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"), as
applicable, and present fairly the financial position of the Company and its
subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby;
and the other financial information included in the Registration Statement and
the Prospectus has been derived from the accounting records of the Company and
its subsidiaries and presents fairly the information required to be stated
therein; and the PRO FORMA financial information and the related notes thereto
included in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and the assumptions underlying such PRO FORMA
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financial information are reasonable and are set forth in the Registration
Statement and the Prospectus.
(d) NO MATERIAL ADVERSE CHANGE. Since the date of the most recent
financial statements of the Company included in the Registration Statement and
the Prospectus, (i) there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, or any material adverse change, or any
development which could reasonably be expected to result in a material adverse
change, in the business, properties, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to
the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Registration Statement and the
Prospectus.
(e) ORGANIZATION AND GOOD STANDING. The Company and each of its
subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21 to
the Registration Statement.
(f) CAPITALIZATION. At the Closing Date, the Company will have an
authorized capitalization as set forth in the Prospectus under the heading
"Capitalization"; all the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) will have been
duly and validly authorized and issued and will be fully paid and non-assessable
and will not be subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants
or options to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or options; at the Closing Date, the capital stock
of the Company will conform in all material respects to the description thereof
contained in
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the Registration Statement and the Prospectus; and all the outstanding shares
of capital stock or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and
clear of any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party.
(g) DUE AUTHORIZATION. The Company has full right, power and authority
to execute and deliver (i) this Agreement, (ii) the Consent and Reaffirmation to
the Consent and First Amendment to the Second Amended and Restated Loan and
Security Agreement between the Company, certain of its subsidiaries and its US
lenders (the "US Loan Amendment Consent"), (iii) the Consent and Reaffirmation
to the Consent and First Amendment to the Second Amended and Restated Loan and
Security Agreement between the Company, certain of its subsidiaries and its
Canadian lenders (the "Canadian Loan Amendment Consent") and (iv) the
Registration Rights Agreement dated as of _____________, 2004 by and among the
Company and _________ (the "Registration Agreement") (collectively, the
"Transaction Documents") and to perform its obligations hereunder and
thereunder.
(h) UNDERWRITING AGREEMENT. This Agreement has been duly authorized,
executed and delivered by the Company.
(i) THE SHARES. The Shares to be issued and sold by the Company
hereunder have been duly authorized by the Company and, when issued and
delivered and paid for as provided herein, will be duly and validly issued and
will be fully paid and nonassessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(j) TRANSACTION DOCUMENTS. The US Loan Amendment Consent, the Canadian
Loan Amendment Consent and the Registration Agreement have been duly authorized,
executed and delivered by the Company and constitute valid and legally binding
agreements of the Company enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
by equitable principles relating to enforceability; and all action required to
be taken for the, execution and filing by the Company of the Amended and
Restated Certificate of Incorporation of the Company with the Delaware Secretary
of State has been duly and validly taken.
(k) DESCRIPTIONS OF THE TRANSACTION DOCUMENTS. Each Transaction
Document conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus.
(l) NO VIOLATION OR DEFAULT. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
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which any of the property or assets of the Company or any of its subsidiaries
is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii) above,
for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) NO CONFLICTS. The execution, delivery and performance by the
Company of each of the Transaction Documents, the issuance and sale of the
Shares to be sold by the Company hereunder and the consummation by the Company
of the transactions contemplated by the Transaction Documents will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except in the case of clauses (i) and
(iii) above for any such conflict, breach or violation that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(n) NO CONSENTS REQUIRED. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of each of the Transaction Documents, the issuance and sale of
the Shares to be sold by the Company hereunder and the consummation by the
Company of the transactions contemplated by the Transaction Documents, except
for (i) the registration of the Shares under the Securities Act and (ii) such
consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(o) LEGAL PROCEEDINGS. Except as described in the Prospectus, there are
no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries is or
may be the subject that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations under the Transaction
Documents; no such investigations, actions, suits or proceedings are, to the
best knowledge of the Company, threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the Prospectus that are not
so described and (ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as exhibits to
the Registration Statement or described in the Registration Statement or the
Prospectus that are not so filed or described.
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(p) INDEPENDENT ACCOUNTANTS. Ernst & Young LLP, who have certified
certain financial statements of the Company and its subsidiaries, are an
independent registered public accounting firm with respect to the Company and
its subsidiaries as required by the Securities Act.
(q) TITLE TO REAL AND PERSONAL PROPERTY. The Company and its
subsidiaries have good and marketable title to, or have valid rights to lease or
otherwise use, all items of real and personal property that are material to the
respective businesses of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) are disclosed in the Prospectus, (ii) do not materially
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries or (iii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(r) TITLE TO INTELLECTUAL PROPERTY. The Company and its subsidiaries
own or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses;
and the conduct of their respective businesses does not conflict in any material
respect with any such rights of others, and the Company and its subsidiaries
have not received any notice of any claim of infringement or conflict with any
such rights of others.
(s) NO UNDISCLOSED RELATIONSHIPS. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one hand,
and the directors, officers, stockholders, customers or suppliers of the Company
or any of its subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus and that is not
so described.
(t) INVESTMENT COMPANY ACT. The Company is not and, after giving effect
to the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be required to register as an
"investment company" or an entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, "Investment Company
Act").
(u) TAXES. The Company and its subsidiaries have paid all federal,
state, local and foreign taxes and filed all material tax returns required to be
paid or filed through the date hereof; and except as otherwise disclosed in the
Prospectus, there is no material tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets.
(v) LICENSES AND PERMITS. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are
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necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration
Statement and the Prospectus, except where the failure to possess or make the
same would not, individually or in the aggregate, have a Material Adverse
Effect; and except as described in the Prospectus, neither the Company nor
any of its subsidiaries has received notice of any revocation or modification
of any such license, certificate, permit or authorization or has any reason
to believe that any such license, certificate, permit or authorization will
not be renewed in the ordinary course.
(w) NO LABOR DISPUTES. No material labor disturbance by or material
dispute with employees of the Company or any of its subsidiaries exists or, to
the knowledge of the Company, is contemplated or threatened.
(x) COMPLIANCE WITH ENVIRONMENTAL LAWS. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws"); (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually
or in the aggregate, have a Material Adverse Effect.
(y) COMPLIANCE WITH ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in material compliance with its
terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the "Code"); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no "accumulated
funding deficiency" as defined in Section 412 of the Code has been incurred,
whether or not waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(z) ACCOUNTING CONTROLS. The Company and its subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the
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recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(aa) INSURANCE. The Company and its subsidiaries have insurance, which
insurance is in amounts and insures against such losses and risks as are
reasonable and customary for the business in which they are engaged; and neither
the Company nor any of its subsidiaries has (i) received notice from any insurer
or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its
business.
(bb) NO UNLAWFUL PAYMENTS. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(cc) NO RESTRICTIONS ON SUBSIDIARIES. Except as set forth in the senior
loan facilities, no subsidiary of the Company is currently prohibited, directly
or indirectly, under any agreement or other instrument to which it is a party or
is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's properties or assets to the Company or any other
subsidiary of the Company.
(dd) NO BROKER'S FEES. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against the Company
or any of its subsidiaries or any Underwriter for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of the
Shares.
(ee) NO REGISTRATION RIGHTS. No person has the right, not otherwise
waived, to require the Company or any of its subsidiaries to register any
securities for sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of the
Shares to be sold by the Company hereunder or, to the knowledge of the Company,
the sale of the Shares to be sold by the Selling Stockholder hereunder.
(ff) NO STABILIZATION. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
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(gg) BUSINESS WITH CUBA. The Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating
to doing business with the Government of Cuba or with any person or affiliate
located in Cuba.
(hh) MARGIN RULES. Neither the issuance, sale and delivery of the
Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or
X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(ii) FORWARD-LOOKING STATEMENTS. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(jj) STATISTICAL AND MARKET DATA. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement and the Prospectus is
not based on or derived from sources that are reliable and accurate in all
material respects.
(kk) RECAPITALIZATION. Prior to the date hereof, the Company has filed
with the Secretary of State of the State of Delaware the Amended and Restated
Certificate of Incorporation of the Company and has consummated, among other
things, (i) a 4,550-for-1 stock split, (ii) the reclassification of the class A
common stock of the Company as Common Stock, (iii) the elimination of the class
B common stock of the Company, (iv) the increase in the number of authorized
shares of Common Stock to 100,000,000 and (v) the creation of 5,000,000 shares
of undesignated preferred stock.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each of
the Selling Stockholders severally and not jointly represents and warrants to
each Underwriter and the Company that:
(a) REQUIRED CONSENTS; AUTHORITY. All consents, approvals,
authorizations and orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement and, if applicable, the Power of Attorney
(the "Power of Attorney") and the Custody Agreement (the "Custody Agreement")
hereinafter referred to, and for the sale and delivery of the Shares to be sold
by such Selling Stockholder hereunder, have been obtained except for (i) the
registration of the Shares under the Securities Act and (ii) such consents,
approvals, authorizations, orders and registrations or qualifications as may be
required under federal securities laws and applicable state securities and Blue
Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters; and such Selling Stockholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; this Agreement, the Power of Attorney and the Custody
Agreement have each been duly authorized, executed and delivered by such Selling
Stockholder.
11
(b) NO CONFLICTS. The execution, delivery and performance by
such Selling Stockholder of this Agreement, the Power of Attorney and the
Custody Agreement, the sale of the Shares to be sold by such Selling Stockholder
and the consummation by such Selling Stockholder of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of such Selling Stockholder pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling Stockholder
is subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of such Selling Stockholder or (iii)
result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory agency
having jurisdiction over such Selling Stockholder (excluding the matters covered
in Section 4(e)), except, in the case of clause (i) and (iii) for such
conflicts, breaches or violations which could not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
consummation of the transactions contemplated by this Agreement.
(c) TITLE TO SHARES. Such Selling Stockholder has good and
valid title to the Shares to be sold at the Closing Date or the Additional
Closing Date, as the case may be, by such Selling Stockholder hereunder, free
and clear of all liens, encumbrances, equities or adverse claims; such Selling
Stockholder will have, immediately prior to the Closing Date or the Additional
Closing Date, as the case may be, good and valid title to the Shares to be sold
at the Closing Date or the Additional Closing Date, as the case may be, by such
Selling Stockholder, free and clear of all liens, encumbrances, equities or
adverse claims; and, upon delivery of the certificates representing such Shares
and payment therefor pursuant hereto, good and valid title to such Shares, free
and clear of all liens, encumbrances, equities or adverse claims, will pass to
the several Underwriters.
(d) NO STABILIZATION. Such Selling Stockholder has not taken
and will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Shares.
(e) REGISTRATION STATEMENT AND PROSPECTUS. As of the
applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and will comply in all material
respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and as of the applicable filing date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; PROVIDED
that such Selling Stockholder only makes such representation and warranty to the
extent such statements or omissions were made or omitted in reliance upon and in
conformity with information relating to such Selling Stockholder furnished
12
by such Selling Stockholder for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto; and PROVIDED FURTHER,
that with respect to any Selling Stockholder other than CHS, such information
must have been furnished by the Selling Stockholder in writing to the Company.
(f) LOCK-UP AGREEMENTS. Such Selling Stockholder has delivered
to the Representatives prior to the date hereof an executed "lock-up" agreement
in the form of Exhibit B hereto.
(g) MATERIAL INFORMATION. As of the date hereof, as of the
Closing Date and as of the Additional Closing Date, as the case may be, that the
sale of the Securities by such Selling Stockholder is not and will not be
prompted by any material information concerning the Company which is not set
forth in the Registration Statement or the Prospectus.
Each of the Selling Stockholders (other than CHS) represents
and warrants that certificates in negotiable form representing all of the Shares
to be sold by such Selling Stockholder hereunder have been placed in custody
under a Custody Agreement relating to such Shares, in the form heretofore
furnished to you, duly executed and delivered by such Selling Stockholder to
EquiServe, Inc. and its wholly-owned subsidiary EquiServe Trust Company, N.A.,
as custodian (the "Custodian"), and that such Selling Stockholder has duly
executed and delivered Powers of Attorney, in the form heretofore furnished to
you, appointing the person indicated in Schedule IV hereto as such Selling
Stockholder's Attorney-in-fact (the "Attorney-in-Fact" or any one of them the
"Attorney-in Fact") with authority to execute and deliver this Agreement on
behalf of such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to such Selling Stockholder as provided herein, to authorize
the delivery of the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders (other than CHS) specifically
agrees that the Shares represented by the certificates held in custody for such
Selling Stockholder under the Custody Agreement, are subject to the interests of
the Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of
the Attorney-in-Fact by the Power of Attorney, are to that extent irrevocable.
Each of the Selling Stockholders specifically agrees that the obligations of
such Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder, or, in
the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership, corporation or similar organization, by the dissolution of such
partnership, corporation or organization, or by the occurrence of any other
event. If any individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership, corporation or similar organization
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing such Shares shall be
delivered by or on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the
13
Custody Agreement, and actions taken by the Attorney-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorney-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with each Underwriter that:
(a) EFFECTIVENESS OF THE REGISTRATION STATEMENT. The Company will use
its commercially reasonable efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, will file the
final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and the Company will furnish
copies of the Prospectus to the Underwriters in New York City prior to 10:00
A.M., New York City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request.
(b) DELIVERY OF COPIES. The Company will deliver, without charge, (i)
to the Representatives, three signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy
of the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period, as many copies
of the Prospectus (including all amendments and supplements thereto) as the
Representatives may reasonably request. As used herein, the term "Prospectus
Delivery Period" means such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales of the Shares by any Underwriter or dealer.
(c) AMENDMENTS OR SUPPLEMENTS. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, the Company will
furnish to the Representatives and counsel for the Underwriters a copy of the
proposed amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representatives reasonably object.
(d) NOTICE TO THE REPRESENTATIVES. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any amendment to the Prospectus has been filed;
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (v) of the issuance by
the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose; (vi) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus as then amended or supplemented would
include any untrue
14
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading; and
(vii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its commercially reasonable efforts to
prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification of the
Shares and, if any such order is issued, will obtain as soon as reasonably
possible the withdrawal thereof.
(e) ONGOING COMPLIANCE OF THE PROSPECTUS. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Company will promptly notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(f) BLUE SKY COMPLIANCE. The Company will qualify the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications
in effect so long as required for distribution of the Shares; PROVIDED that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) EARNING STATEMENT. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) CLEAR MARKET. For a period of 180 days after the date of the
initial public offering of the Shares, the Company will not (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such
15
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,
without the prior written consent of the Representatives, other than (w) the
Shares to be sold hereunder, (x) any grant of any stock options or issuance
of any shares of Common Stock of the Company issued upon the exercise of
options granted under existing employee stock plans, (y) any grant of shares
of Common Stock under existing employee stock plans or (z) any shares of
Common Stock issued in connection with one or more acquisitions by the
Company of assets or equity interests (whether by mergers, exchanges of
equity interests or otherwise); provided, that each person or entity
receiving any shares of Common Stock pursuant to this subsection (z) agrees
in writing to be bound by the restrictions set forth in this Section 5(h).
(i) USE OF PROCEEDS. The Company will apply its net proceeds from the
sale of the Shares as described in the Prospectus under the heading "Use of
Proceeds".
(j) NO STABILIZATION. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(k) EXCHANGE LISTING. The Company will use its best efforts to list for
quotation the Shares on the National Association of Securities Dealers Automated
Quotations National Market (the "Nasdaq National Market").
(l) REPORTS. For three years from the date hereof, the Company will
furnish to the Representatives, as soon as they are available, copies of all
reports or other communications (financial or other) furnished to holders of the
Shares, and copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange or automatic quotation
system, unless they are otherwise available on the Commission's ▇▇▇▇▇ system.
(m) FILINGS. The Company will file with the Commission such reports as
may be required by Rule 463 under the Securities Act.
6. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each of the Selling
Stockholders covenants and agrees with each Underwriter that it will deliver to
the Representatives prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form or
statement specified by the Treasury Department regulations in lieu thereof) in
order to facilitate the Underwriters' documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase the Underwritten Shares on the Closing Date or the
Option Shares on the Additional Closing Date, as the case may be, as provided
herein is subject to the performance by the Company and each of the Selling
Stockholders of their respective covenants and other obligations hereunder and
to the following additional conditions:
16
(a) REGISTRATION COMPLIANCE; NO STOP ORDER. The Registration Statement
(or if a post-effective amendment thereto is required to be filed under the
Securities Act, such post-effective amendment) shall have become effective, and
the Representatives shall have received notice thereof, not later than 5:00
P.M., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 5(a) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) REPRESENTATIONS AND WARRANTIES. The respective representations and
warranties of the Company and the Selling Stockholders contained herein shall be
true and correct on the date hereof and on and as of the Closing Date or the
Additional Closing Date, as the case may be; and the statements of the Company
and its officers and of each of the Selling Stockholders made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date or the Additional Closing Date, as the case may be.
(c) NO MATERIAL ADVERSE CHANGE. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Prospectus (excluding any amendment or supplement thereto) and
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement and the
Prospectus.
(d) OFFICER'S CERTIFICATE. The Representatives shall have received on
and as of the Closing Date or the Additional Closing Date, as the case may be, a
certificate (i) of the chief financial officer or chief accounting officer of
the Company and one additional senior executive officer of the Company who is
satisfactory to the Representatives (A) confirming that such officers have
carefully reviewed the Registration Statement and the Prospectus and, to the
knowledge of such officers, the representation of the Company set forth in
Section 3(b) hereof is true and correct, (B) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date and (C) to the effect set forth in paragraphs (a) and (c)
above and (ii) of each of the Selling Stockholders, in form and substance
reasonably satisfactory to the Representatives, (A) confirming that the
representation of such Selling Stockholders set forth in Section 4(e) hereof is
true and correct and (B) confirming that the other representations and
warranties of such Selling Stockholders in this agreement are true and correct
and that such Selling Stockholders have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at
or prior to such Closing Date.
(e) COMFORT LETTERS. On the date of this Agreement and on the Closing
Date or the Additional Closing Date, as the case may be, Ernst & Young LLP shall
have furnished to the
17
Representatives, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and
the Prospectus; provided, that the letter delivered on the Closing Date or
the Additional Closing Date, as the case may be, shall use a "cut-off" date
no more than three business days prior to such Closing Date or such
Additional Closing Date, as the case may be.
(f) OPINION OF COUNSEL FOR THE COMPANY. ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for
the Company and CHS, shall have furnished to the Representatives, at the request
of the Company, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in the form
set forth on EXHIBIT A.
(g) OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS. Each counsel for
the Selling Stockholders set forth on Exhibit A hereto shall have furnished to
the Representatives, at the request of the Selling Stockholders, their written
opinion, dated the Closing Date or the Additional Closing Date, as the case may
be, and addressed to the Underwriters, in the form set forth on EXHIBIT A
hereto.
(h) OPINION OF COUNSEL FOR THE UNDERWRITERS. The Representatives shall
have received on and as of the Closing Date or the Additional Closing Date, as
the case may be, an opinion of Winston & ▇▇▇▇▇▇ LLP, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as
they may reasonably request to enable them to pass upon such matters.
(i) NO LEGAL IMPEDIMENT TO ISSUANCE. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date or the Additional Closing Date, as the case
may be, prevent the issuance or sale of the Shares; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares.
(j) GOOD STANDING. The Representatives shall have received on and as of
the Closing Date or the Additional Closing Date, as the case may be,
satisfactory evidence of the good standing of the Company and its subsidiaries
in their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representatives may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such
jurisdictions.
(k) EXCHANGE LISTING. The Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved for
listing on the Nasdaq National Market, subject to official notice of issuance.
18
(l) LOCK-UP AGREEMENTS. The "lock-up" agreements, each substantially in
the form of Exhibit B hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing Date or
the Additional Closing Date, as the case may be.
(m) ADDITIONAL DOCUMENTS. On or prior to the Closing Date or the
Additional Closing Date, as the case may be, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF THE UNDERWRITERS BY THE COMPANY. The Company
agrees to indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
reasonable expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below; provided, that the indemnity agreement provided in this Section 8(a)
with respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any losses, claims, damages or
liabilities or actions based upon any untrue statement or alleged untrue
statement of material fact or omission or alleged omission to state therein a
material fact purchased the Shares, if a copy of the Prospectus in which such
untrue statement or alleged untrue statement or omission or alleged omission was
corrected had not been sent or given to such person within the time required by
the Securities Act.
The Company also agrees to indemnify and hold harmless, ▇.▇. ▇▇▇▇▇▇,
its affiliates, directors and officers and each person, if any, who controls
▇.▇. ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all
19
losses, claims, damages and liabilities to the extent incurred as a result of
▇. ▇. ▇▇▇▇▇▇'▇ participation as a "qualified independent underwriter" within
the meaning of the Rules of Conduct of the National Association of Securities
Dealers, Inc. in connection with the offering of the Shares.
(b) INDEMNIFICATION OF THE UNDERWRITERS BY THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders agrees severally and not jointly in proportion
to the number of Shares to be sold by such Selling Stockholder hereunder to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other reasonable expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact relating to such Selling Stockholder provided by such Selling
Stockholder for use in, and contained in, the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact about the Selling Stockholder required to be stated therein or
necessary to make the statements therein about the Selling Stockholder, in the
light of the circumstances under which they were made, not misleading; provided,
that with respect to any Selling Stockholder other than CHS, such information
must have been furnished by the Selling Stockholder in writing to the Company;
and provided further, that the indemnity agreement provided in this Section 8(b)
with respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any losses, claims, damages or
liabilities or actions based upon any untrue statement or alleged untrue
statement of material fact or omission or alleged omission to state therein a
material fact purchased the Shares, if a copy of the Prospectus in which such
untrue statement or alleged untrue statement or omission or alleged omission was
corrected had not been sent or given to such person within the time required by
the Securities Act.
Each of the Selling Stockholders severally and not jointly in
proportion to the number of Shares to be sold by such Selling Stockholder
hereunder also agrees to indemnify and hold harmless ▇. ▇. ▇▇▇▇▇▇, its
affiliates, directors and officers and each person, if any, who controls ▇. ▇.
▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (i) to the extent incurred as a result of ▇. ▇. ▇▇▇▇▇▇'▇
participation as a "qualified independent underwriter" within the meaning of the
rules of Conduct of the National Association of Securities Dealers, Inc. in
connection with the offering of the Shares and (ii) that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
relating to such Selling Stockholder provided by such Selling Stockholder for
use in, and contained in, the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact about the Selling
Stockholder required to be stated therein or necessary to make the statements
therein about the Selling Stockholder, in the light of the circumstances under
which they were made, not misleading.
20
Notwithstanding anything to the contrary contained herein, the
aggregate liability of each Selling Stockholder under Section 8 hereof shall not
exceed the net proceeds received by such Selling Stockholder hereunder.
(c) INDEMNIFICATION OF THE COMPANY AND THE SELLING STOCKHOLDERS. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
(including, without limitation, the reasonable legal fees and other reasonable
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) that arise out of, or are based upon, any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus, it being understood and agreed upon that
the only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fifth paragraph and the
information relating to stabilization and other market actions contained in the
ninth paragraph under the caption "Underwriting".
(d) NOTICE AND PROCEDURES. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to the preceding paragraphs of this Section 8, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; PROVIDED
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 8 except to the extent that it has
been materially prejudiced by such failure; and PROVIDED, FURTHER, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 8. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 8 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
21
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred;
PROVIDED, however that if indemnity may be sought pursuant to the second
paragraph of 8(a) or 8(b) above in respect of such proceeding, then in addition
to such separate firm of the Underwriters, their affiliates and such control
persons of the Underwriters the indemnifying party shall be liable for the fees
and expenses of not more than one separate firm (in addition to any local
counsel) for ▇. ▇. ▇▇▇▇▇▇ to the extent resulting from its capacity as a
"qualified independent underwriter", its affiliates and all persons, if any, who
control ▇. ▇. ▇▇▇▇▇▇ within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by ▇. ▇. ▇▇▇▇▇▇, any such
separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company and any such separate firm for the Selling
Stockholders shall be designated in writing by CHS. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) CONTRIBUTION. If the indemnification provided for in paragraphs
(a), (b) and (c) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters or ▇. ▇. ▇▇▇▇▇▇ to the extent resulting from acting in its
capacity as a "qualified independent underwriter", as the case may be, on the
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) is not
22
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters or ▇. ▇. ▇▇▇▇▇▇ to the extent resulting from acting in
its capacity as a "qualified independent underwriter", as the case may be, on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters or ▇. ▇. ▇▇▇▇▇▇
to the extent resulting from acting in its capacity as a "qualified
independent underwriter", as the case may be, on the other shall be deemed to
be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company and the Selling Stockholders from the sale
of the Shares and the total underwriting discounts and commissions received
by the Underwriters in connection therewith, in each case as set forth in the
table on the cover of the Prospectus, or the fee to be received by ▇. ▇.
▇▇▇▇▇▇ to the extent resulting from acting in its capacity as a "qualified
independent underwriter", as the case may be, bear to the aggregate offering
price of the Shares. The relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters or ▇. ▇. ▇▇▇▇▇▇ to the
extent resulting from acting in its capacity as a "qualified independent
underwriter", as the case may be, on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Selling
Stockholders or by the Underwriters or ▇.▇. ▇▇▇▇▇▇, as the case may be, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) LIMITATION ON LIABILITY. The Company, the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by PRO RATA allocation (even if the
Selling Stockholders or the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (e) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Shares exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in proportion
to their respective purchase obligations hereunder and not joint.
Notwithstanding anything to the contrary contained herein, the
aggregate liability of each Selling Stockholder under Section 8 hereof shall not
exceed the net proceeds received by such Selling Stockholder hereunder.
23
(g) NON-EXCLUSIVE REMEDIES. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
9. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
upon the later of (i) the execution and delivery hereof by the parties hereto
and (ii) receipt by the Company and the Representatives of notice of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment thereto).
10. TERMINATION. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company and the Selling
Stockholders, if after the execution and delivery of this Agreement and prior to
the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock Exchange
or the National Association of Securities Dealers, Inc.; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated by this Agreement and the Prospectus.
11. DEFAULTING UNDERWRITER. (a) If, on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter defaults on its
obligation to purchase the Shares that it has agreed to purchase hereunder on
such date, the non-defaulting Underwriters may in their discretion arrange for
the purchase of such Shares by other persons satisfactory to the Company and the
Selling Stockholders on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters
do not arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree
to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company and the Selling Stockholders may postpone the
Closing Date or the Additional Closing Date, as the case may be, for up to five
full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholders or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule I hereto that, pursuant to
this Section 11, purchases Shares that a defaulting Underwriter agreed but
failed to purchase.
24
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, the Company and the Selling Stockholders as provided in paragraph
(a) above, the aggregate number of Shares that remain unpurchased on the Closing
Date or the Additional Closing Date, as the case may be, does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date,
then the Company and the Selling Stockholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter's
pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, the Company and the Selling Stockholders as provided in paragraph
(a) above, the aggregate number of Shares that remain unpurchased on the Closing
Date or the Additional Closing Date, as the case may be, exceeds one-eleventh of
the aggregate amount of Shares to be purchased on such date, or if the Company
and the Selling Stockholders shall not exercise the right described in paragraph
(b) above, then this Agreement or, with respect to any Additional Closing Date,
the obligation of the Underwriters to purchase Shares on the Additional Closing
Date, as the case may be, shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant to this
Section 11 shall be without liability on the part of the Company and the Selling
Stockholders, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 12 hereof and except that the provisions of
Section 8 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company, the Selling Stockholders or any
non-defaulting Underwriter for damages caused by its default.
12. PAYMENT OF EXPENSES. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Shares and any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus and the Prospectus (including
all exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing this Agreement; (iv) the fees
and expenses of the Company's counsel and independent accountants; (v) the fees
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Shares under the laws of such
jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, the National Association of
Securities Dealers, Inc. (including the fees and
25
expenses of ▇. ▇. ▇▇▇▇▇▇ acting as "qualified independent underwriter" within
the meaning of the aforementioned Rule 2720 of The Rules of Conduct); (ix)
all expenses incurred by the Company in connection with any "road show"
presentation to potential investors; and (x) all expenses and application
fees related to the listing of the Shares on the NASDAQ National Market.
(b) If (i) this Agreement is terminated pursuant to Section 10, (ii)
the Company or the Selling Stockholders for any reason (other than a breach of
the Agreement by the Underwriters) fail to tender the Shares for delivery to the
Underwriters or (iii) the Underwriters decline to purchase the Shares for any
reason permitted under this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket costs and expenses (including the fees and
expenses of their counsel) reasonably incurred by the Underwriters in connection
with this Agreement and the offering contemplated hereby.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 8 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
14. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Selling
Stockholders and the Underwriters contained in this Agreement or made by or on
behalf of the Company, the Selling Stockholders or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company, the Selling Stockholders or the
Underwriters.
15. CERTAIN DEFINED TERMS. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
16. MISCELLANEOUS. (a) AUTHORITY OF THE REPRESENTATIVES. Any action by
the Underwriters hereunder may be taken by ▇. ▇. ▇▇▇▇▇▇ Securities Inc. on
behalf of the Underwriters, and any such action taken by ▇. ▇. ▇▇▇▇▇▇ Securities
Inc. shall be binding upon the Underwriters.
(b) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representatives c/o ▇. ▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (212) 622-
26
8358); Attention: Syndicate Desk. Notices to the Company shall be given to it
at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (978)
▇▇▇-▇▇▇▇); Attention: President and Chief Executive Officer. Notices to CHS
shall be given to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax:
(▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇ ▇▇▇▇▇▇. Notices to the other Selling
Stockholders shall be given to ▇▇▇▇▇ ▇▇▇▇▇▇, Attorney-in-Fact at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇).
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) COUNTERPARTS. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) AMENDMENTS OR WAIVERS. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) HEADINGS. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
27
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
BEACON ROOFING SUPPLY, INC.
By: _______________________
Name:
Title:
CODE, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P.
By: _______________________
Name:
Title:
OTHER SELLING STOCKHOLDERS
By: ______________________
Name:
Title:
As Attorney-in-Fact acting
on behalf of each of the
Selling Stockholders (other
than Code, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ III, L.P.) named in
Schedule II and Schedule
III to this Agreement.
Accepted: __________, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For themselves and on behalf of the
several Underwriters listed
in Schedule I hereto.
By:___________________________
Authorized Signatory
28