CABELA’S INCORPORATED 4,736,868 Shares of Common Stock UNDERWRITING AGREEMENT
CABELA’S
INCORPORATED
4,736,868
Shares of Common Stock
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Capital Markets, LLC
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Ladies
and Gentlemen:
The
stockholders named on Exhibit A hereto (collectively, the “Selling
Stockholders”
and
each, a “Selling
Stockholder”)
of
Cabela’s Incorporated, a Delaware corporation (the “Company”),
confirm their respective agreements with Wachovia Capital Markets, LLC
(“Wachovia”
or
the
“Underwriter”),
with
respect to the sale by the Selling Stockholders of a total of 4,736,868 shares
(the “Securities”)
of the
Company’s Class A Common Stock and Class B Common Stock, par value $0.01 per
share (collectively, the “Common
Stock”),
and
the purchase by the Underwriter of the entire amount of Securities. Certain
terms used in this Agreement are defined in Section 15 hereof.
The
Company and the Selling Stockholders understand that the Underwriter proposes
to
make a public offering of the Securities as soon as the Underwriter deems
advisable after this Agreement has been executed and delivered.
Promptly
after the execution of this Agreement, the Company will prepare and file with
the Commission in accordance with the provisions of Rule 424(b) a prospectus
supplement relating to the Securities (the “Prospectus
Supplement”),
together with the related prospectus dated September 19, 2005 (the “Base
Prospectus”),
and
the Company has previously advised you of all information (financial and other)
that will be set forth therein. The Prospectus Supplement and the Base
Prospectus in the form first furnished to the Underwriter for use in connection
with the offering of the Securities, including the documents incorporated or
deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act as of the date of the Prospectus
Supplement, are herein called, collectively, the “Prospectus.”
At
or
prior to the date hereof (the “Time
of Sale”),
the
Company has prepared the following information (collectively with the
information referred to in the next succeeding sentence, the “Time
of Sale Information”):
a
preliminary prospectus supplement dated February 26, 2007, and each
“free-writing prospectus” (as defined pursuant to Rule 405) listed on Exhibit B
hereto. In addition, you have informed us that the Underwriter has provided
or
will orally provide the pricing information set out on Exhibit B hereto to
prospective purchasers prior to confirming sales.
SECTION
1. Representations
and Warranties.
(a) Representations
and Warranties by the Company.
The
Company represents and warrants to the Underwriter as of the date hereof and
as
of the Closing Date referred to in Section 2(b) hereof and agrees with the
Underwriter, as follows:
(1) Compliance
with
Registration Requirements.
The
Company meets the requirements for use of Form S-3 under the 1933 Act and
the Securities have been duly registered under the 1933 Act pursuant to the
Registration Statement. Each of the Initial Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Initial Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose or pursuant to Section 8A
of
the 1933 Act against the Company or related to the offering have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At
the
respective times the Initial Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became or
become effective, at any time subsequent to the effective date of the Initial
Registration Statement that the Company filed an Annual Report on Form 10-K
or Form 10K/A with the Commission and at the Closing Date, the Initial
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and
did not and will not contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any amendments
or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued, at the Closing Date, and at any time when a prospectus
is
required by applicable law to be delivered in connection with sales of
Securities, included or will include an untrue statement of a material fact
or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement
or
Prospectus made in reliance upon and in conformity with information furnished
to
the Company in writing by the Underwriter expressly for use in the Registration
Statement or Prospectus.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations, and each preliminary prospectus and the Prospectus and any
amendments or supplements thereto delivered to the Underwriter for use in
connection with the offering of the Securities was identical to the
electronically transmitted copy thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
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(2) Time
of Sale Information.
The
Time of Sale Information, at the Time of Sale did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state
a
material fact necessary in order to 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
the Underwriter furnished to the Company in writing by the Underwriter expressly
for use in such Time of Sale Information. No statement of material fact included
in the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted
therefrom.
(3) Issuer
Free Writing
Prospectus.
Other
than the preliminary prospectus and the Prospectus, the Company (including
its
agents and representatives, other than the Underwriter in its capacity as such)
has not made, used, prepared, authorized, approved or referred to and will
not
prepare, make, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) that constitutes an offer to sell
or
solicitation of an offer to buy the Securities (each such communication by
the
Company or its agents and representatives (other than a communication referred
to in clause (i) below) an “Issuer
Free Writing Prospectus”)
other
than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act or (ii) the documents
listed on Exhibit B hereto and other written communications approved in writing
in advance by the Underwriter. Each such Issuer Free Writing Prospectus complied
in all material respects with the 1933 Act, has been filed in accordance with
the 1933 Act (to the extent required thereby) and, when taken together with
the
preliminary prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not,
contain any untrue 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 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 each such Issuer Free Writing Prospectus in reliance upon
and
in conformity with information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use in any Issuer Free
Writing Prospectus.
(4) Incorporated
Documents.
The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information, at
the
respective times they were or hereafter are filed with the Commission, as the
case may be, complied and will comply, in all material respects, with the
requirements of the 1934 Act and the 1934 Act Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
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(5) Good
Standing of the Company.
The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all of the jurisdictions set forth opposite
its
name on Exhibit C hereto, which constitute all other jurisdictions in which
its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not, individually or in the aggregate, have a material adverse effect
on
the condition (financial or otherwise), results of operations, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise (a “Material
Adverse Effect”).
(6) Subsidiaries.
Exhibit
C hereto sets forth a list of all subsidiaries of the Company, the type and
jurisdiction of incorporation or organization of each subsidiary and the
Company’s direct or indirect percentage equity ownership of each
subsidiary.
(7) Good
Standing of Corporate Subsidiaries.
Each
subsidiary of the Company that is a corporation (each, a “Corporate
Subsidiary”)
has
been duly incorporated and is an existing corporation in good standing under
the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and conduct its business
as
described in the Prospectus; and each Corporate Subsidiary is duly qualified
to
do business as a foreign corporation in good standing in all of the
jurisdictions set forth opposite such Corporate Subsidiary’s name on Exhibit C
hereto, which constitute all other jurisdictions in which such Corporate
Subsidiary’s ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified or
in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
Corporate Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and, except as disclosed in the Prospectus, the capital
stock of each Corporate Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens and encumbrances.
(8) Good
Standing of LLC
Subsidiaries.
Each
subsidiary of the Company that is a limited liability company (each, an
“LLC
Subsidiary”)
has
been duly organized and is an existing limited liability company in good
standing under the laws of the jurisdiction of its organization, with limited
liability company power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; and each LLC Subsidiary
is duly qualified to do business as a foreign limited liability company in
good
standing in all of the jurisdictions set forth opposite such LLC Subsidiary’s
name on Exhibit C hereto, which constitute all other jurisdictions in which
such
LLC Subsidiary’s ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified or
in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect; the capital contributions with respect to the outstanding
membership interests that are required to have been made for each LLC Subsidiary
have been made to the LLC Subsidiary; all of the issued and outstanding
membership interests of each LLC Subsidiary have been duly authorized and
validly
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issued
and are fully paid and nonassessable and, except as disclosed in the Prospectus,
the membership interests of each LLC Subsidiary owned by the Company, directly
or indirectly, are owned free from liens and encumbrances. Each operating
agreement pursuant to which the Company owns a membership interest, directly
or
indirectly, is in full force and effect and constitutes the legal, valid and
binding agreement of the Company and its subsidiaries that are parties thereto
and, to the knowledge of the Company, the other parties thereto, enforceable
against such parties in accordance with the terms thereof, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or
other similar laws affecting the enforcement of creditors’ rights generally and
by general equitable principles. There has been no material breach of or default
under, and no event which with notice or lapse of time would constitute a
material breach of or default under, such operating agreements by the Company
or
any other subsidiaries or, to the knowledge of the Company, any other party
to
such agreements.
(9) Capitalization.
The
Securities and all other outstanding shares of capital stock of the Company
have
been duly authorized, are validly issued, fully paid and nonassessable and
conform in all material respects to the description thereof included or
incorporated by reference in the Registration Statement, Time of Sale
Information and the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities or such other capital
stock.
(10)
No
Brokerage Commission Liability.
Except
as disclosed in the Registration Statement, the Time of Sale Information or
the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or the Underwriter for a brokerage commission, finder’s fee or other like
payment in connection with the transactions contemplated by this
Agreement.
(11)
Absence
of Registration Rights.
Except
as disclosed in the Registration Statement, the Time of Sale Information or
the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to
file a registration statement under the 1933 Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company
to
include such securities in the securities registered pursuant to the
Registration Statement or in the offering contemplated by this Agreement or
in
any securities being registered pursuant to any other registration statement
filed by the Company under the 1933 Act.
(12)
NYSE.
The
Securities are listed on the NYSE.
(13)
Absence
of Governmental Requirements.
No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this Agreement in
connection with the sale of the Securities, except such as have been obtained
and made under the 1933 Act and such as may be required under state securities
laws or the bylaws or rules and regulations of the NASD.
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(14)
Absence
of Further Requirements.
(A) No
authorization, approval, vote or other consent of any stockholder or creditor
of
the Company, (B) no waiver or consent under any loan or other agreement to
which
the Company or any of its subsidiaries is a party and (C) no authorization,
approval, vote or other consent of any other person or entity is necessary
or
required for the performance by the Company of its obligations under this
Agreement, for the offering, sale or delivery of the Securities hereunder,
or
for the consummation of any of the other transactions contemplated by this
Agreement, in each case on the terms contemplated by the Registration Statement
and the Prospectus, except such as have been already obtained under the 1933
Act
or the 1933 Act Regulations or such as may be required under state securities
laws.
(15)
Authorization
of Agreement.
This
Agreement has been duly authorized, executed and delivered by the
Company.
(16) Absence
of Defaults and Conflicts.
(A) The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated by this Agreement will not result in a breach
or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order, including, without limitation,
any
Banking Laws (as hereinafter defined), of any governmental agency or body or
any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their respective properties or any agreement
or instrument to which the Company or any such subsidiary is a party or by
which
the Company or any such subsidiary is bound or to which any of the respective
properties of the Company or any such subsidiary is subject, or the charter,
by-laws or other organizational documents of the Company or any such subsidiary,
or result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of the Company or any of its
subsidiaries, except where the breach, violation, default, lien, change, claim
or encumbrance would not, individually or in the aggregate, have a Material
Adverse Effect.
(B) Neither
the Company nor any of its subsidiaries is in breach or violation of any of
the
terms and provisions of (i) any statute, any rule, regulation or order,
including, without limitation, any Banking Laws, of any governmental agency
or
body or any court, domestic or foreign, having jurisdiction over the Company
or
any subsidiary of the Company or any of their respective properties, (ii) any
agreement or instrument to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which any of
the
respective properties of the Company or any such subsidiary is subject or (iii)
the charter, by-laws or other organizational documents of the Company or any
such subsidiary, except, in the case of clauses (i) and (ii) for any breach
or
violation which would not, individually or in the aggregate, have a Material
Adverse Effect, and no event of default or event that, but for the giving of
notice or the lapse of time or both, would constitute an event of default
exists, or upon consummation
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of
the
transactions contemplated by this Agreement, will exist, under any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or other
agreement or instrument to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which any of
the
respective properties of the Company or any such subsidiary is subject, except
for any such events of default or events which would not, individually or in
the
aggregate, have a Material Adverse Effect. There are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required, except
where
the failure to describe or file would not, individually or in the aggregate,
have a Material Adverse Effect.
(17)
Title
to Property.
Except
as disclosed in the Registration Statement, Time of Sale Information and the
Prospectus, the Company and its subsidiaries have good and marketable title
to
all material real properties and all other material properties and assets owned
by them, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use made
or
to be made thereof by them; and except as disclosed in the Registration
Statement, Time of Sale Information and the Prospectus, the Company and its
subsidiaries hold any material leased real or personal property under valid
and
enforceable leases with no exceptions that would materially interfere with
the
use made or to be made thereof by them.
(18)
Possession
of Certificates and Permits.
The
Company and its subsidiaries possess all material certificates, authorities
or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any notice
of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any of
its
subsidiaries, would, individually or in the aggregate, have a Material Adverse
Effect.
(19)
Possession
of Intellectual Property.
The
Company and its subsidiaries own, or have licensed or can license on reasonable
terms, the right to use all trademarks, trade names and copyrights, and the
rights to inventions, know-how, patents, copyrights, confidential information
and other intellectual property and proprietary rights (collectively,
“intellectual
property rights”)
necessary to conduct the business now operated by them (collectively, the
“Company
Rights”).
Except as would not have a Material Adverse Effect, the Company and its
subsidiaries have not infringed or violated, and are not infringing or
violating, the intellectual property rights of any third party. Neither the
Company nor any of its subsidiaries has received any notice of or inquiry as
to
any claimed infringement of or conflict with asserted rights of any third party,
or any notice of or inquiry as to enforceability or validity, with respect
to
any Company Rights, that, if determined adversely to the Company or any of
its
subsidiaries would, individually or in the aggregate, have a Material Adverse
Effect.
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(20)
Environmental
Laws.
Except
as would not, individually or in the aggregate, have a Material Adverse Effect,
(A) the properties, assets and operations of the Company and its subsidiaries
are in compliance with, and hold any and all permits, authorizations and
approvals required under, all applicable federal, state, local and foreign
environmental laws, rules and regulations, orders, decrees, judgments, permits,
licenses, other binding requirements, or common law, relating to or addressing
the environment or the health and safety of humans or other living organisms,
and to the protection, clean-up, or restoration of the natural environment
and
activities or conditions related thereto, including, without limitation, those
relating to the production, extraction, processing, manufacturing, generation,
handling, disposal, transportation or release of hazardous materials
(collectively, “Environmental
Laws”),
(B)
with respect to such properties, assets and operations (including any previously
owned, leased or operated properties, assets or operations with respect to
such
prior period of ownership or operation), there are no past, present or, to
the
knowledge of the Company, reasonably anticipated future events, conditions,
circumstances, activities, practices, incidents, actions or plans of the Company
or any of its subsidiaries that may interfere with or prevent compliance or
continued compliance by the Company and its subsidiaries with applicable
Environmental Laws and (C) neither the Company nor any of its subsidiaries
is,
to the knowledge of the Company, the subject of any investigation, and neither
the Company nor any of its subsidiaries has received any notice or claim (or
is
aware of any facts that would be expected to result in any such claim), nor
bound by an judgment, decree or order, nor entered into any negotiations or
agreements with any third party, relating to any liability or potential
liability or remedial action or potential remedial action under Environmental
Laws, nor are there any pending, or, to the knowledge of the Company, threatened
or reasonably anticipated actions, suits or proceedings against or affecting
the
Company, any of its subsidiaries or their properties, assets or operations
in
connection with any such Environmental Laws. The term “hazardous materials”
shall mean any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances, or wastes) that are regulated
by or
form the basis for liability under any applicable Environmental
Laws.
(21)
Employee
Benefits.
(A)
Except as would not, individually or in the aggregate have a Material Adverse
Effect, each employee benefit plan, policy or agreement, including, without
limitation, any “employee benefit plan” as such term is defined under Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”),
which
is sponsored, maintained or contributed to or required to be contributed to
by
the Company or any of its subsidiaries (collectively, the “Company
Benefit Plans”),
has
been operated and administered in all material respects in accordance with
its
terms and applicable laws, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the “Code”).
Each
of the Company Benefit Plans that is intended to be “qualified” within the
meaning of Section 401(a) of the Code is so qualified and the trusts maintained
thereunder are exempt from tax under Section 501(a) of the
Code.
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(B) Neither
the Company nor
any person or entity that, together with the Company, is treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code (a “Commonly
Controlled Entity”)
has
maintained, contributed or been obligated to contribute to (i) any plan that
is
subject to Title IV of ERISA or Section 412 of the Code or (ii) a “multiemployer
plan” as defined in Section 3(37) of ERISA.
(C) None
of the Company, any
of its subsidiaries, any of the Company Benefit Plans, any trust created
thereunder, or any trustee or administrator thereof has engaged in a transaction
or has taken or failed to take any action in connection with which the Company
or any of its subsidiaries could be subject to any liability for either a civil
penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed
pursuant to Section 4975(a) or (b), 4976 or 4980B of the Code.
(D) There
are no pending, or,
to the knowledge of the Company, threatened or anticipated, claims against
any
Company Benefit Plans (other than routine claims for benefits), by any current
or former employee, consultant, officer or director of the Company or any of
its
subsidiaries (or any beneficiary thereof).
(22)
Pension
Plans and Absence of Labor Dispute.
All
“pension plans” (as defined in Section 3(2) of ERISA) maintained by the Company
or any subsidiary that are intended to be qualified under Section 401(a) of
the
Code have received determination letters from the Internal Revenue Service
to
the effect that such plans are so qualified, the trusts maintained thereunder
are exempt from tax under Section 501(a) of the Code and, to the knowledge
of
the Company, no fact exists which could materially adversely affect the
qualified status of any such plans; neither the Company nor any subsidiary
maintains or is required to contribute to a “welfare plan” (as defined in
Section 3(1) of ERISA) which provides retiree or other post-employment welfare
benefits or insurance coverage (other than “continuation coverage” (as defined
in Section 602 of ERISA)); none of the Company, any subsidiary of the Company
or
any ERISA Affiliate of the Company or any such subsidiary has ever maintained
a
pension plan subject to Section 412 of the Code or Title IV of ERISA; none
of
the Company, any subsidiary of the Company or any ERISA Affiliate of the Company
or any such subsidiary has ever been obligated to contribute to any
“multi-employer plan” (as defined in Section 4001(a)(3) of ERISA); each pension
plan, welfare plan or other benefit plan established or maintained by the
Company and/or any subsidiary is in compliance in all material respects with
the
currently applicable provisions of the plan, ERISA, the Code and all other
applicable laws; and no labor dispute with the employees of the Company or
any
subsidiary exists or, to the knowledge of the Company, is imminent that might
have a Material Adverse Effect. For the purposes of this section, the term
“ERISA Affiliate” of the Company or any subsidiary means any person or entity
which, together with the Company or any subsidiary, would be treated as a single
employer under Section 414 of the Code.
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(23) Tax
Returns.
The
Company and its subsidiaries have filed on a timely basis all federal, state,
local and foreign tax returns required to be filed, such returns are complete
and correct in all material respects, and all taxes shown by such returns or
otherwise assessed that are due and payable have been paid, except such taxes
as
are being, or (in the case of certain state sales tax audits) in the future
will
be, contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the Company and
its
subsidiaries in respect of any tax liability for any year not finally determined
are, to the best knowledge of the Company, adequate to meet assessments or
reassessments, if any, for additional taxes; and, except as disclosed in the
Registration Statement, the Time of Sale Information or the Prospectus or as
could not, individually or in the aggregate, have a Material Adverse Effect,
there has been no tax deficiency asserted and the Company is not aware of any
facts that would form a reasonable basis for the assertion of any material
tax
deficiency against the Company or any of its subsidiaries.
(24) Absence
of Proceedings.
Except
as
disclosed in the Registration Statement, the Time of Sale Information or the
Prospectus, (A) there are no pending actions, suits or proceedings against
or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a Material Adverse
Effect; and (B) no such actions, suits or proceedings are, to the best knowledge
of the Company, threatened or contemplated.
(25) Accounting
Controls.
The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(26) Financial
Statements.
The
financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus present fairly in
all
material respects the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been prepared
in
conformity with generally accepted accounting principles in the United States
applied on a consistent basis; and the schedules (if any) included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus present fairly in all material respects the
information required to be stated therein.
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(27) No
Material Adverse Change in Business.
Except
as
disclosed in the Registration Statement, the Time of Sale Information or the
Prospectus, since the date of the latest audited financial statements included
or incorporated by reference in the Registration Statement, the Time of Sale
Information or the Prospectus there has been no material adverse change, nor
any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations
of
the Company and its subsidiaries taken as a whole (a “Material
Adverse Change”),
and,
except as disclosed in or contemplated by the Registration Statement, the Time
of Sale Information or the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of
its capital stock.
(28) Independent
Accountants.
To
the
best knowledge of the Company, Deloitte & Touche LLP, which has certified
certain financial statements included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, is
an
independent registered public accounting firm as required by the 1933
Act
and the 1933 Act Regulations.
(29) Statistical
and Market Data.
The
statistical and market related data included or incorporated by reference in
the
Registration Statement, the Time of Sale Information and the Prospectus are
based on or derived from the Company’s records or other sources which the
Company reasonably and in good faith believes to be reliable and the statistical
and market related data included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus agrees
with the sources from which it was derived.
(30) Insurance.
Each
of
the Company and its subsidiaries is insured by recognized, reputable, and to
the
best knowledge of the Company, financially sound institutions with policies
in
such amounts and with such deductibles and covering such risks as are adequate
for the conduct of its business and the value of its properties and as are
customary for companies engaged in similar businesses in similar
situations.
(31) Deposit
Accounts.
The
deposit accounts and investments certificates, if any, of the World’s Foremost
Bank, a limited purpose Nebraska banking corporation and wholly owned subsidiary
of the Company (the “Bank”),
are
insured by the Federal Deposit Insurance Corporation (the “FDIC”)
to the
full extent of FDIC insurance limits, except where the failure to be so insured
would not, individually or in the aggregate, have a Material Adverse Effect.
No
charge, investigation or proceeding for the termination or revocation of the
Bank’s charter, good standing or FDIC insurance is pending or, to the best
knowledge of the Company, threatened or contemplated.
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11
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(32) Banking
Law.
Except
for (i) an order dated May 28, 2003 and issued by the Nebraska State Department
of Banking and Finance approving the Bank’s application to convert its national
credit card bank charter to a Nebraska credit card bank charter and (ii) an
order dated February 6, 2001 and issued by the FDIC approving the Bank’s
application for federal deposit insurance, neither the Company nor the Bank
is
subject to any order of the Federal Reserve Board (the “Federal
Reserve”),
the
FDIC, the Office of the Comptroller of the Currency (the “OCC”),
the
Nebraska State Department of Banking and Finance or any state or foreign banking
department with jurisdiction over the Company or the Bank or their respective
operations. Neither the Company nor the Bank is subject to any agreement or
consent related to compliance with banking laws and regulations with, or any
board resolution adopted at the instigation of, any such regulatory authorities.
The Company and the Bank have conducted and are conducting their respective
businesses in compliance, in all material respects, with all applicable federal,
foreign and state laws, rules, regulations, decisions, directives and orders
of,
and agreements with, the Federal Reserve, the FDIC, the OCC, the Nebraska State
Department of Banking and Finance and any state or foreign banking departments
with jurisdiction over the Company or the Bank or their respective operations
(collectively, “Banking
Laws”).
No
material charge, investigation or proceeding with respect to the Bank is pending
or, to the best knowledge of the Company, threatened or contemplated, by or
before any regulatory, administrative or governmental agency, body or
authority.
(33) FDIC
Regulations.
The
Bank
is in compliance with all applicable capital requirements and is “well
capitalized” as defined in FDIC regulations.
(34) Bank
Holding Company Act.
Neither
the Company nor any of its subsidiaries is a “bank holding company” within the
meaning of the Bank Holding Company Act of 1956, as amended.
(35) Credit
Card Accounts.
Except
as
would not have a Material Adverse Effect, individually or in the aggregate,
the
credit card accounts (the “Accounts”)
originated by the Bank, whether securitized by the Bank or retained as seller’s
interest for the Bank’s own account, have been created, maintained by the Bank
and serviced in compliance with applicable federal and state laws and
regulations and the standard policies and procedures of the Bank relating to
the
administration of the Accounts including, but not limited to, the solicitation,
credit approval, processing, servicing, collection and other administration
and
management of the Accounts, as such policies and procedures may have been
modified from time to time.
(36) Account
Interest Rates and Fees.
The
interest rates, fees and charges in connection with the Accounts comply with
applicable federal and state laws and regulations and, except as would not
have
a Material Adverse Effect, individually or in the aggregate, with each agreement
between the Bank and a cardholder containing the terms and conditions of the
Account.
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12
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(37) Account
Applications and Disclosure.
Except
as would not, individually or in the aggregate, have a Material Adverse Effect,
all applications for Accounts have been conducted and evaluated and applicants
notified in a manner which is in compliance with all applicable provisions
of
the Equal Credit Opportunity Act and its implementing regulations, as amended.
Except as would not, individually or in the aggregate, have a Material Adverse
Effect, all disclosures made in connection with the Accounts are and have been
in compliance, with the applicable provisions of the Consumer Credit Protection
Act and its implementing regulations, as amended.
(38) 1934
Act Reporting Requirements.
The
Company is subject to the reporting requirements of either Section 13 or 15(d)
of the 1934 Act and files reports with the Commission on ▇▇▇▇▇.
(39) Investment
Company Act.
The
Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company” as defined in the Investment
Company Act of 1940.
(40) Executive
Officer and Director Indebtedness.
There
are
no outstanding loans, advances (except normal advances for business expenses
in
the ordinary course of business) or guarantees of indebtedness by the Company
to
or for the benefit of any of the executive officers or directors of the Company
or any of the members of the families of any of them of the sort required to
be
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, except as disclosed therein. 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 its subsidiaries, on the other hand, which is required to be described in
the
Registration Statement, the Time of Sale Information and the Prospectus which
is
not so described.
(41) Personal
Loans to Executive Officers and Directors.
The
Company has not, except as would not violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
directly or indirectly, including through a subsidiary, extended or maintained
credit, arranged for the extension of credit, or renewed an extension of credit,
in the form of a personal loan to or for any director or executive officer
of
the Company.
(42) Absence
of Manipulation.
Neither
the Company, nor, to the best knowledge of the Company, any of its officers,
directors or affiliates has taken or may take, directly or indirectly, any
action designed to cause or result in, or that has constituted or may
constitute, the stabilization or manipulation of the price of any security
of
the Company to facilitate the sale or resale of the Securities or
otherwise.
(b) Representations
and Warranties by the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders.
▇.▇.
▇▇▇▇▇▇ Partners (BHCA), L.P., ▇.▇. ▇▇▇▇▇▇ Global Investors, L.P., ▇.▇. ▇▇▇▇▇▇
Partners Global Investors (Selldown), L.P., ▇.▇. ▇▇▇▇▇▇ Global Investors A,
L.P.
(collectively, the Delaware
Selling Stockholders”),
▇.▇.
▇▇▇▇▇▇ Partners Global Investors (Cayman), L.P. and ▇.▇. ▇▇▇▇▇▇ Global Investors
(Cayman) II, L.P. (the “Cayman
Selling Stockholders”
and
together with the Delaware Selling Stockholders, the “▇.▇.
▇▇▇▇▇▇ Selling Stockholders”),
jointly and severally, represent and warrant to the Underwriter as of the date
hereof and as of the Closing Date, and agree with the Underwriter, as
follows:
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13
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(1) Accurate
Disclosure.
The
▇.▇. ▇▇▇▇▇▇ Selling Stockholders have reviewed and will review, and are and
will
be familiar with, the Initial Registration Statement as originally filed with
the Commission and all amendments thereto, if any, with any Rule 462(b)
Registration Statement and all amendments thereto, if any, and with each
preliminary prospectus and the Prospectus and any amendments or supplements
thereto, if any, and the Time of Sale Information; and, at the respective times
the Initial Registration Statement, any Rule 462(b) Registration Statement
or
any post-effective amendment thereto became or becomes effective, at any time
subsequent to the effective date of the Initial Registration Statement that
the
Company filed an Annual Report on Form 10-K or Form 10-K/A with the Commission,
at the Closing Date, and at any time when a prospectus is required by applicable
law to be delivered in connection with sales of Securities, the information
relating to the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders (including the information
with
respect to the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders’ Securities and any other shares
of Common Stock or other securities of the Company which are owned or held
by
the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders) that is set forth in the Initial
Registration Statement or any Rule 462(b) Registration Statement (or in any
amendments thereto), the Time of Sale Information or in any preliminary
prospectus or the Prospectus (or in any amendments or supplements thereto)
did
not and will not contain an untrue statement of a material fact and did not
and
will not omit to state a material fact necessary in order to make such
information not misleading; all information furnished or confirmed (orally
or in
writing) by or on behalf of the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders for use in
the
Registration Statement (or any amendment thereto), the Time of Sale Information
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) is and will be true, complete and correct; and the ▇.▇. ▇▇▇▇▇▇ Selling
Stockholders are not prompted to sell the Securities to be sold by the ▇.▇.
▇▇▇▇▇▇ Selling Stockholders under this Agreement by any information concerning
the Company or any subsidiary of the Company which is not set forth in the
Registration Statement, the Time of Sale Information or the Prospectus.
Notwithstanding anything herein to the contrary, the provisions of this
paragraph (b)(1) apply only to the extent that any statements in or omissions
from the Initial Registration Statement, any Rule 462(b) Registration Statement
(or in any amendments thereto), the Time of Sale Information or in any
preliminary prospectus or the Prospectus (or in any amendments or supplements
thereto) are made in reliance on and in conformity with written information
relating to such ▇.▇. ▇▇▇▇▇▇ Selling Stockholder specifically and expressly
for
use therein, it being understood and agreed that such information includes,
without limitation, the information relating to the ▇.▇. ▇▇▇▇▇▇ Selling
Stockholders in the Registration Statement, the Time of Sale Information and
the
Prospectus, including in the Prospectus under the caption “Selling
Stockholders.”
(2) Valid
and Unencumbered
Title.
The
▇.▇.
▇▇▇▇▇▇ Selling Stockholders have (A) valid and unencumbered title to the
Securities to be sold by the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders on the Closing
Date, and (B) on the Closing Date, the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders will
have valid and unencumbered title to the Securities to be sold by the ▇.▇.
▇▇▇▇▇▇ Selling Stockholders on the Closing Date, in each case free and clear
of
all liens or encumbrances, and the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders have full
right, power and authority to enter into this Agreement, assuming (i) the
Underwriter purchases
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14
-
such
Securities without notice of any adverse claim (within the meaning of Section
8-105 of the Uniform
Commercial Code of the State of New York (the “UCC”)
and
(2)
the Underwriter makes payment for such Securities as provided in this Agreement,
the Underwriter will acquire all of the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders’ rights
and interests in the Securities sold by the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders
free of any adverse claim (within the meaning of Section 8-102(a)(1) of the
UCC).
(3) Underwriting
Agreement.
This
Agreement has been duly authorized, executed and delivered by the ▇.▇. ▇▇▇▇▇▇
Selling Stockholders.
(4) Absence
of Further
Requirements.
No
consent, approval, authorization, order, registration or qualification of,
or
filing with, any third party (whether acting in an individual, fiduciary or
other capacity) or any governmental or regulatory agency or body or court is
required to be obtained or made by the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders for
the
consummation of the transactions contemplated by this Agreement in connection
with the sale of the Securities by the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders, except
(A) such consents, approvals, authorizations, orders, registrations,
qualifications or filings as may be required by the 1933 Act, the 1933 Act
Regulations, applicable state securities or blue sky laws, (B) as may be
required by the NASD, (C) as may be required under the laws of any foreign
jurisdiction in which the Securities may be offered or sold and (D) where such
failure to obtain such consent, approval, authorization or order, individually
or in the aggregate, would not have a material adverse effect on the
consummation of the transactions contemplated by this Agreement.
(5) Non-Contravention.
The
execution, delivery and performance by or on behalf of the ▇.▇. ▇▇▇▇▇▇ Selling
Stockholders of this Agreement and the consummation of the transactions
contemplated herein and therein will not result in a breach or violation of
any
of the terms and provisions of, or constitute a default under (A) any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the ▇.▇. ▇▇▇▇▇▇ Selling
Stockholders, (B) any material agreement or instrument to which any of the
▇.▇.
▇▇▇▇▇▇ Selling Stockholders is a party or by which any of the ▇.▇. ▇▇▇▇▇▇
Selling Stockholders is bound or to which any of the properties of any of the
▇.▇. ▇▇▇▇▇▇ Selling Stockholders is subject or (C) to the extent applicable,
the
charter, bylaws or other organizational document of any of the ▇.▇. ▇▇▇▇▇▇
Selling Stockholders.
(6) Power
and Authority.
The
▇.▇.
▇▇▇▇▇▇ Selling
Stockholders have full right, power and authority to execute, deliver and
perform their obligations under this Agreement and to sell, transfer and deliver
the Securities to be sold by the ▇.▇.
▇▇▇▇▇▇ Selling
Stockholders under this Agreement.
(7) No
Brokerage Commission Liability.
Except
as
specifically provided in Section 2 of this Agreement, there are no contracts,
agreements or understandings between the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders and
any third party that would give rise to a valid claim against the ▇.▇. ▇▇▇▇▇▇
Selling Stockholders or the Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with the transactions contemplated by this
Agreement.
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15
-
(8) Absence
of Manipulation.
The
▇.▇. ▇▇▇▇▇▇ Selling Stockholders have not taken, directly or indirectly, any
action designed to or that could cause or result in stabilization or
manipulation of the price of the Securities to facilitate the sale or resale
of
the Securities.
(c) Representations
and
Warranties by Fulcrum.
Fulcrum
Growth Partners, L.L.C. (“Fulcrum”)
represents and warrants to the Underwriter as of the date hereof and as of
the
Closing Date, and agrees with the Underwriter, as follows:
(1) Accurate
Disclosure.
Fulcrum
has reviewed and will review, and is and will be familiar with, the Initial
Registration Statement as originally filed with the Commission and all
amendments thereto, if any, with any Rule 462(b) Registration Statement and
all
amendments thereto, if any, and with each preliminary prospectus and the
Prospectus and any amendments or supplements thereto, if any, and the Time
of
Sale Information; and, at the respective times the Initial Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto became or becomes effective, at any time subsequent to the
effective date of the Initial Registration Statement that the Company filed
an
Annual Report on Form 10-K or Form 10-K/A with the Commission, at the Closing
Date, and at any time when a prospectus is required by applicable law to be
delivered in connection with sales of Securities, the information relating
to
Fulcrum (including the information with respect to Fulcrum’s Securities and any
other shares of Common Stock or other securities of the Company which are owned
or held by Fulcrum) that is set forth in the Initial Registration Statement
or
any Rule 462(b) Registration Statement (or in any amendments thereto), the
Time of Sale Information or in any preliminary prospectus or the Prospectus
(or
in any amendments or supplements thereto) did not and will not contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make such information not misleading; all information
furnished or confirmed (orally or in writing) by or on behalf of Fulcrum for
use
in the Registration Statement (or any amendment thereto), the Time of Sale
Information or any preliminary prospectus or the Prospectus (or any amendment
or
supplement thereto) is and will be true, complete and correct; and Fulcrum
is
not prompted to sell the Securities to be sold by Fulcrum under this Agreement
by any information concerning the Company or any subsidiary of the Company
which
is not set forth in the Registration Statement, the Time of Sale Information
or
the Prospectus. Notwithstanding anything herein to the contrary, the provisions
of this paragraph (c)(1) apply only to the extent that any statements in or
omissions from the Initial Registration Statement, any Rule 462(b) Registration
Statement (or in any amendments thereto), the Time of Sale Information or in
any
preliminary prospectus or the Prospectus (or in any amendments or supplements
thereto) are made in reliance on and in conformity with written information
relating to Fulcrum specifically and expressly for use therein, it being
understood and agreed that such information includes, without limitation, the
information relating to Fulcrum in the Registration Statement, the Time of
Sale
Information and the Prospectus, including in the Prospectus under the caption
“Selling Stockholders.”
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16
-
(2) Valid
and Unencumbered Title.
Fulcrum
has (A) valid and unencumbered title to the Securities to be sold by Fulcrum
on
the Closing Date, and (B) on the Closing Date,
Fulcrum
will have valid and unencumbered title to the Securities to be sold by Fulcrum
on the Closing Date, in each case free and clear of all liens or encumbrances,
and Fulcrum has full right, power and authority to enter into this Agreement,
assuming (i) the Underwriter purchases such Securities without notice of any
adverse claim (within the meaning of Section 8-105 of the Uniform
Commercial Code of the State of New York (the “UCC”)
and
(2)
the Underwriter makes payment for such Securities as provided in this Agreement,
the Underwriter will acquire all Fulcrum’s rights and interests in the
Securities sold by Fulcrum free of any adverse claim (within the meaning of
Section 8-102(a)(1) of the UCC).
(3) Custody
Agreement.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, acting in his capacity as the Chairman of MGI Holdings, Inc.,
Fulcrum’s sole managing member (“▇▇▇▇▇▇▇▇”),
has
duly authorized, executed and delivered, on behalf of Fulcrum, a Letter of
Transmittal and Custody Agreement (its “Custody
Agreement”)
to
▇▇▇▇▇ Fargo Bank, N.A., as custodian (the “Custodian”);
its
Custody Agreement constitutes a valid and binding obligation of Fulcrum,
enforceable in accordance with its terms, except as enforcement thereof may
be
limited by bankruptcy, insolvency or other similar laws relating to creditors’
rights generally or by general equitable principles; ▇▇▇▇▇▇▇▇ is authorized
to
execute and deliver this Agreement and the certificates referred to in Section
6(l) hereof on behalf of Fulcrum, to determine the purchase price to be paid
by
the Underwriter to Fulcrum for the Securities to be sold by Fulcrum under this
Agreement, to authorize the delivery to the Underwriter of the Securities to
be
sold by Fulcrum under this Agreement and to accept payment therefor, to duly
endorse (in blank or otherwise) the certificate or certificates representing
such Securities or a stock power or powers with respect thereto and otherwise
to
act on behalf of Fulcrum in connection with this Agreement and the transactions
contemplated hereby.
(4) Underwriting
Agreement.
This
Agreement has been duly authorized, executed and delivered by
Fulcrum.
(5) Absence
of Further Requirements.
No
consent, approval, authorization, order, registration or qualification of,
or
filing with, any third party (whether acting in an individual, fiduciary or
other capacity) or any governmental or regulatory agency or body or court is
required to be obtained or made by Fulcrum for the consummation of the
transactions contemplated by this Agreement in connection with the sale of
the
Securities by Fulcrum, except (A) such consents, approvals, authorizations,
orders, registrations, qualifications or filings as may be required by the
1933
Act, the 1933 Act Regulations, applicable state securities or blue sky laws,
(B)
as may be required by the NASD, (C) as may be required under the laws of any
foreign jurisdiction in which the Securities may be offered or sold and (D)
where such failure to obtain such consent, approval, authorization or order,
individually or in the aggregate, would not have a material adverse effect
on
the consummation of the transactions contemplated by this
Agreement.
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17
-
(6) Non-Contravention.
The
execution, delivery and performance by or on behalf of Fulcrum of this Agreement
and the consummation of the transactions contemplated herein and therein will
not result in a breach or violation of any of the terms and provisions of,
or
constitute a default under (A) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over Fulcrum, (B) any material agreement or instrument to which
Fulcrum is a party or by which Fulcrum is bound or to which any of the
properties of Fulcrum is subject or (C) to the extent applicable, its
certificate of formation, its amended and restated limited liability company
agreement or other organizational document of Fulcrum.
(7) Power
and Authority.
Fulcrum
has full right, power and authority to execute, deliver and perform its
obligations under this Agreement and its Custody Agreement and to sell, transfer
and deliver the Securities to be sold by Fulcrum under this
Agreement.
(8) No
Brokerage
Commission Liability.
Except
as
specifically provided in Section 2 of this Agreement, there are no contracts,
agreements or understandings between Fulcrum and any third party that would
give
rise to a valid claim against Fulcrum or the Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with the
transactions contemplated by this Agreement.
(9) Absence
of Manipulation.
Fulcrum
has not taken, directly or indirectly, any action designed to or that could
cause or result in stabilization or manipulation of the price of the Securities
to facilitate the sale or resale of the Securities.
(10)
Restriction
on Sale of Securities.
Fulcrum
will not, without the prior written consent of the Underwriter, offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
that is designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by Fulcrum),
directly or indirectly, including the filing (or participation in the filing)
of
a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the 1934 Act and the 1934 Act
Regulations with respect to, any shares of Common Stock or other capital stock
of the Company or any securities convertible into or exercisable or exchangeable
for such Common Stock or other capital stock (whether owned by Fulcrum at the
date of this Agreement or subsequently acquired by Fulcrum), or publicly
announce an intention to effect any such transaction, for a period beginning
on
and including the date of this Agreement through and including the date which
is
30 days after the date of this Agreement; provided,
however,
that
Fulcrum may (i) transfer
(a) in connection with the merger, sale or other bona fide transfer in a single
transaction of all or substantially all of such Fulcrum’s assets; (b) to another
corporation, partnership or other business entity if the transferee is an
affiliate
of Fulcrum; or (c) as a part of a distribution from Fulcrum to its equity
holders if such transfer is not for value and (ii) transfer any Common Stock
or
other capital stock of the Company or any securities convertible
into
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18
-
or
exercisable or exchangeable for such Common Stock or other capital stock to
charitable or educational organizations without the prior written consent of
the
Underwriter if (a) such transfer is a bona fide gift, (b) Fulcrum
provides written notice of such transfer to the Underwriter no later than three
business days prior to such transfer, (c) the transferee executes and
delivers to the Underwriter, not later than one business day prior to such
transfer, an agreement, in form and substance reasonably satisfactory to the
Underwriter, substantially to the effect set forth in this paragraph and
(d) neither Fulcrum nor the transferee shall publicly disclose the
transfer, except to the extent required by law.
Notwithstanding
the foregoing, if (1) during the last 17 days of the 30-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company is announced; or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 30-day period,
the restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the announcement of the material news or material event, unless
the
Underwriter waives, in writing, that extension.
(11) Certificates
Suitable for Transfer.
Certificates for all of the Securities to be sold by Fulcrum pursuant to this
Agreement, in form suitable for transfer by delivery and accompanied by duly
executed stock powers endorsed in blank by Fulcrum with signatures guaranteed,
have been placed in custody with the Custodian for the purpose of effecting
delivery hereunder and thereunder.
(d) Certificates.
Any
certificate signed by any officer of the Company or any of its subsidiaries
and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed
a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby; and any certificate signed by or on behalf of any Selling
Stockholder and delivered to the Underwriter or counsel for the Underwriter
shall be deemed a representation and warranty by such Selling Stockholder to
the
Underwriter as to the matters covered thereby.
SECTION
2. Sale
and Delivery to
Underwriter; Closing.
(a) Securities.
On
the
basis of the representations and warranties herein contained and subject to
the
terms and conditions herein set forth, each of the Selling Stockholders,
severally and not jointly, agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from each Selling Stockholder, at the price
of
$24.00 per share (the “Purchase
Price”),
the
number of Securities set forth in Exhibit A opposite the name of such
Selling Stockholder. The price at which the Securities shall initially be
offered to the public is $24.05 per share.
(b) Payment.
Payment
of the purchase price for, and delivery of certificates for, the Securities
shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon
by the Underwriter and the Company, at 9:00 A.M. (Eastern time) on March
14, 2007 (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriter and the Company (such time
and
date of payment and delivery being herein called the “Closing
Date”).
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Payment
shall be made to the Selling Stockholders by wire transfer of immediately
available funds to a single bank account in the case of each Selling
Stockholder, which account shall be designated by each such Selling Stockholder,
in each case against delivery to the Underwriter for the account of the
Underwriter of certificates for the Securities to be purchased by the
Underwriter.
(c) Denominations;
Registration.
Certificates for the Securities shall be in such denominations and registered
in
such names as the Underwriter may request in writing at least one full business
day before the Closing Date. The certificates for the Securities will be made
available for examination and packaging by the Underwriter in The City of New
York not later than noon (Eastern time) on the business day prior to the Closing
Date.
SECTION
3. Covenants
of the
Company.
The
Company covenants with the Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests.
The
Company, subject to Section 3(b), will comply with the requirements of
Rule 415 and will notify the Underwriter immediately, and confirm the
notice in writing, (i) when the Initial Registration Statement, any
Rule 462(b) Registration Statement or any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement (including, without
limitation, any request for any amendment or supplement to the documents
incorporated or deemed to be incorporated by reference therein) or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of
the Registration Statement or of any order preventing or suspending the use
of
any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as it deems reasonably necessary to ascertain promptly whether the
document transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such
document. The Company will undertake commercially reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain
the
lifting thereof at the earliest possible moment.
(b) Filing
of
Amendments.
The
Company will give the Underwriter notice of its intention to file or prepare
any
amendment to the Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act
or otherwise, will furnish the Underwriter with copies of any such documents
within a reasonable amount of time prior to such proposed filing or use, as
the
case may be, and will not file or use any such document to which the Underwriter
or counsel for the Underwriter shall object.
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(c) Delivery
of Registration Statements. The
Company has furnished or will deliver to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriter will be identical to
the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses.
The
Company has delivered to the Underwriter, without charge, as many copies of
each
preliminary prospectus as the Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to the Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the
1934 Act, such number of copies of the Prospectus (as amended or supplemented
and documents incorporated by reference therein) and each Issuer Free Writing
Prospectus as the Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriter will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued
Compliance with
Securities Laws. The
Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus.
If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for
the Underwriter or for the Company, to amend the Registration Statement or
amend
or supplement the Time of Sale Information or the Prospectus in order that
the
Time of Sale Information and Prospectus will not include any untrue statement
of
a material fact or omit to state a material fact necessary in order to make
the
statements therein not misleading in the light of the circumstances existing
at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement
or
amend or supplement the Time of Sale Information or the Prospectus in order
to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or
the
Time of Sale Information or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriter such number of copies of such
amendment or supplement as the Underwriter may reasonably
request.
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(f) Blue
Sky Qualifications. The
Company will use its best efforts, in cooperation with the Underwriter, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriter may designate and to maintain such qualifications in effect for
a
period of not less than one year from the date of this Agreement; provided,
however,
that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been
so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for
a
period of not less than one year from the date of this Agreement.
(g) Rule 158.
The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) Restriction
on Sale of
Securities. The
Company will not, without the prior written consent of Underwriter, offer,
sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in
the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the 1934 Act with
respect to, any shares of the Company’s Common Stock or other capital stock or
any securities convertible into, or exercisable or exchangeable for, shares
of the
Company’s Common Stock or other capital stock, or publicly announce an intention
to effect any such transaction, for a period beginning on and including the
date
of this Agreement through and including the date which is 30 days after the
date
of this Agreement; provided,
however,
that
the Company may (i) transfer any Common Stock or other capital stock of the
Company or any securities convertible into or exercisable or exchangeable for
such Common Stock or other capital stock to the Underwriter, (ii) issue Common
Stock upon the exercise of an option or conversion of a security that is
currently outstanding, (iii) grant options to purchase Common Stock under our
existing incentive stock plans (provided the options do not become exercisable
during such 30-day period) and (iv) issue Common Stock under our existing
employee stock purchase plan.
Notwithstanding
the foregoing, if (1) during the last 17 days of the 30-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company is announced; or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 30-day period,
the restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the announcement of the material news or material event, unless
the
Underwriter waives, in writing, that extension.
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(i) Reporting
Requirements.
The
Company, during the period when the Prospectus is required to be delivered
under
the 1933 Act or the 1934 Act, will file all documents required to be filed
with
the Commission pursuant to the 1934 Act within the time periods required by
the
1934 Act and the 1934 Act Regulations.
(j) Preparation
of Prospectus Supplement. Immediately
following the execution of this Agreement, the Company will, subject to
Section 3(b) hereof, prepare the Prospectus Supplement containing the
public offering price and other selling terms of the Securities, the plan of
distribution thereof and such other information as may be required by the 1933
Act or the 1933 Act Regulations or as the Underwriter and the Company may deem
appropriate, and will file or transmit for filing with the Commission, in
accordance with Rule 424(b), copies of the Prospectus, including such
Prospectus Supplement.
(k) Record
Retention.
The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the 1933 Act.
SECTION
4. Covenants
of the Underwriter.
The
Underwriter covenants with the Company as follows:
(a) It
has
not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the 1933
Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the preliminary prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Exhibit B hereto or prepared pursuant to Section 1(a)(3)
above, or (iii) any free writing prospectus prepared by such underwriter and
approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter
Free Writing Prospectus”).
(b) It
has not and will not
distribute any Underwriter Free Writing Prospectus referred to in clause (a)(i)
in a manner reasonably designed to lead to its broad unrestricted
dissemination.
(c) It
has
not and will not, without the prior written consent of the Company, use any
free
writing prospectus that contains the final terms of the Securities unless such
terms have previously been included in a free writing prospectus filed with
the
Commission; provided
that
Underwriters may use a term sheet substantially in the form of Exhibit B hereto
without the consent of the Company; provided further
that any
Underwriter using such term sheet shall notify the Company, and provide a copy
of such term sheet to the Company, prior to the first use of such term
sheet.
(d) It
will, pursuant to
reasonable procedures developed in good faith, retain copies of each free
writing prospectus used or referred to by it, in accordance with Rule 433 under
the 1933 Act.
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(e) It
is not
subject to any pending proceeding under Section 8A of the 1933 Act with respect
to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
SECTION
5. Payment
of Expenses.
(a) Expenses.
The
Company will pay all expenses incident to the performance of its obligations
and
the obligations of the Selling Stockholders under this Agreement (except for
expenses payable by the Selling Stockholders pursuant to Section 5(b) hereof),
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), each preliminary
prospectus supplement and the Prospectus Supplement as originally filed and
of
each amendment and supplement thereto, (ii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriter,
(iii) the fees and disbursements of the counsel, accountants and other
advisors to the Company, (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for
the Underwriter in connection therewith, (v) the printing and delivery to
the Underwriter of copies of each preliminary prospectus and of the Prospectus
and any amendments or supplements thereto, (vi) the fees and expenses of
the transfer agent and registrar for the Securities, (vii) the fees and
disbursements of counsel for the Selling Stockholders and (viii) the filing
fees incident to the review, if any, by the NASD of the terms of the sale of
the
Securities.
(b) Expenses
of the Selling
Stockholders.
The ▇.▇.
▇▇▇▇▇▇ Selling Stockholders, jointly and severally, and Fulcrum, severally
and
not jointly, will pay the following expenses incident to the performance of
their obligations under this Agreement: (i) any stock transfer taxes, stamp
duties, capital duties or other similar duties, taxes or charges, if any,
payable in connection with the sale or delivery of their Securities to the
Underwriter (and the Selling Stockholders hereby authorize the payment of any
such amounts by deduction from the proceeds of the Securities to be sold by
the
Selling Stockholders under this Agreement, pro rata) and (ii) underwriting
discounts and commissions.
(c) Termination
of Agreement. If
this
Agreement is terminated by the Underwriter in accordance with the provisions
of
Section 6 or Section 10(a)(i) or (v) hereof, the Company shall reimburse
the Underwriter for all of its out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriter.
SECTION
6. Conditions
of
Underwriter’s Obligations.
The
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
contained in this Agreement or in certificates of any officer of the Company
or
any subsidiary of the Company or signed by or on behalf of any Selling
Stockholder delivered pursuant to the provisions hereof, to the performance
by
the Company and the Selling Stockholders of their respective covenants and
other
obligations hereunder, and to the following further conditions:
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24 -
(a) Effectiveness
of Registration Statement. No
stop
order suspending the effectiveness of the Registration Statement shall have
been
issued under the 1933 Act or proceedings therefor initiated or, to the knowledge
of the Company, threatened by the Commission, and any request on the part of
the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriter. The Prospectus and each
Issuer Free Writing Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the time period prescribed by such Rule (in
the case of an Issuer Free Writing Prospectus, to the extent required by Rule
433 under the 1933 Act), and prior to Closing Date, the Company shall have
provided evidence satisfactory to the Underwriter of such timely
filing.
(b) Opinion
of Counsel for
Company. At
the
Closing Date, the Underwriter shall have received the favorable opinion, dated
as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ P.C., counsel for the Company
(“Company
Counsel”),
in
form and substance reasonably satisfactory to counsel for the Underwriter,
to
the effect set forth in Exhibit D hereto and to such further effect as
counsel to the Underwriter may reasonably request.
(c) Banking
Opinion of Banking Counsel for Company.
At the
Closing Date, the Underwriter shall have received the favorable opinion, dated
as of the Closing Date, of Baird, Holm, McEachen, Pedersen, Hamann &
▇▇▇▇▇▇▇▇▇ LLP, banking counsel for the Company (“Company
Banking Counsel”),
in
form and substance reasonably satisfactory to counsel for the Underwriter,
to
the effect set forth in Exhibit E hereto and to such further effect as
counsel to the Underwriter may reasonably request.
(d) Opinion
of Counsel for the Underwriter.
The
Underwriter shall have received the favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel
for the Underwriter, with respect to such matters as the Underwriter 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.
(e) Officers’
Certificate.
At
the
Closing Date, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement,
the Time of Sale Information and the Prospectus (exclusive of any amendments
or
supplements thereto subsequent to the date of this Agreement), any Material
Adverse Change, and, at the Closing Date, the Underwriter shall have received
a
certificate of the Chairman, the Vice Chairman, the President, the Chief
Executive Officer or an Executive Vice President or Senior Vice President of
the
Company and of the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of Closing Date, to the effect that (i) there has been no
Material Adverse Change, (ii) the representations and warranties of the
Company in this Agreement are true and correct with the same force and effect
as
though expressly made at and as of Closing Date, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Date under or pursuant to this
Agreement, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or are pending or, to their knowledge, are contemplated by
the
Commission.
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25 -
(f) Accountant’s
Comfort
Letter. At
the
time of the execution of this Agreement, the Underwriter shall have received
from Deloitte & Touche LLP a letter, dated the date of this Agreement and in
form and substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information of the Company contained or incorporated by reference in the
Registration Statement, the Time of Sale Information or the
Prospectus.
(g) Bring-down
Comfort
Letter. At
the
Closing Date, the Underwriter shall have received from Deloitte & Touche LLP
a letter, dated as of Closing Date and in form and substance satisfactory to
the
Underwriter, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Date.
(h) No
Objection.
Prior to
the date of this Agreement, NASD Regulation Inc. shall have confirmed in writing
that it has no objection with respect to the fairness and reasonableness of
the
underwriting terms and arrangements.
(i) Opinion
of Counsel for the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders.
At the
Closing Date, the Underwriter shall have received the favorable opinion, dated
as of the Closing Date, (i) of O’Melveny & ▇▇▇▇▇ LLP, counsel for the ▇.▇.
▇▇▇▇▇▇ Selling Stockholders, other than the Cayman Selling Stockholders, in
form
and substance reasonably satisfactory to counsel for the Underwriter, to the
effect set forth in Exhibit F hereto and (ii) of Walkers, Cayman local
counsel for the Cayman Selling Stockholders, in form and substance reasonably
satisfactory to counsel for the Underwriter.
(j) Opinion
of Counsel for Fulcrum. At
the
Closing Date, the Underwriter shall have received the favorable opinion, dated
as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for Fulcrum, in form and
substance reasonably satisfactory to counsel for the Underwriter, to the effect
set forth in Exhibit G hereto.
(k) Certificate
of the ▇.▇.
▇▇▇▇▇▇ Selling Stockholders.
At the
Closing Date, the Underwriter shall have received a certificate signed by an
attorney-in-fact on behalf of the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders (the
“▇.▇.
▇▇▇▇▇▇ Stockholders’ Attorney-in-Fact”)
dated
as of the Closing Date, to the effect that (i) the representations and
warranties of each ▇.▇. ▇▇▇▇▇▇ Selling Stockholder in this Agreement are true
and correct with the same force and effect as though expressly made at and
as of
the Closing Date, (ii) each ▇.▇. ▇▇▇▇▇▇ Selling Stockholder has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date under or pursuant to this Agreement
and (iii) each ▇.▇. ▇▇▇▇▇▇ Selling Stockholder has reviewed and is familiar
with the Prospectus and any amendments or supplements thereto and the
information relating to such ▇.▇. ▇▇▇▇▇▇ Selling Stockholder (including the
information with respect to such ▇.▇. ▇▇▇▇▇▇ Selling Stockholder’s Securities
and any other shares of Common Stock or other securities of the Company which
are owned or held by such ▇.▇. ▇▇▇▇▇▇ Selling Stockholder) that is set forth
in
the Registration Statement, the Time of Sale Information or the Prospectus
(or
any amendment or supplement thereto) does not contain any untrue statement
of a
material fact or omit to state a material fact necessary in order to make such
information not misleading.
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26 -
(l) Certificate
of
Fulcrum.
At the
Closing Date, the Underwriter shall have received a certificate signed on behalf
of Fulcrum, dated as of the Closing Date, to the effect that (i) the
representations and warranties of Fulcrum in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date, (ii) Fulcrum has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Date under
or pursuant to this Agreement and (iii) Fulcrum has reviewed and is
familiar with the Prospectus and any amendments or supplements thereto and
the
information relating to Fulcrum (including the information with respect to
Fulcrum’s Securities and any other shares of Common Stock or other securities of
the Company which are owned or held by Fulcrum) that is set forth in the
Registration Statement, the Time of Sale Information or the Prospectus (or
any
amendment or supplement thereto) does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make such
information not misleading.
(m) Tax
Forms.
Prior
to the Closing Date, the Underwriter shall have received a properly completed
and executed United States Treasury Department Form W-9 or W-8 (or other
applicable form) from each of the Selling Stockholders.
(n) Additional
Documents.
At the
Closing Date, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to
pass upon the issuance and sale of the Securities as herein contemplated, or
in
order to evidence the accuracy of any of the representations or warranties,
or
the fulfillment of any of the conditions, contained in this Agreement; and
all
proceedings taken by the Company and the Selling Stockholders in connection
with
the issuance and sale of the Securities as herein contemplated and in connection
with the other transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Underwriter and counsel for the
Underwriter.
(o) Termination
of Agreement.
If
any
condition specified in this Section 6 shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company and the Selling Stockholders at any time
on
or prior to the Closing Date, and such termination shall be without liability
of
any party to any other party except as provided in Section 4 hereof and
except that Sections 1 (if, and only if, Securities have been purchased
under this Agreement), 7, 8 and 9 hereof shall survive any such termination
and
remain in full force and effect.
SECTION
7. Indemnification.
(a) Indemnification
by the Company. The
Company agrees to indemnify and hold harmless the Underwriter and each person,
if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of
(i)
any untrue statement or alleged untrue statement of a material fact contained
in
the Registration Statement or the omission or alleged omission therefrom of
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) or any untrue statement or alleged untrue statement
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of
a
material fact contained in the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information,
or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(ii) against
any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent
of
the aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided
that
(subject to Section 7(e) below) any such settlement is effected with the
written consent of the Company; and
(iii)
against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Wachovia), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above,
provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information.
(b) Indemnification
by Selling Stockholders. The
▇.▇.
▇▇▇▇▇▇ Selling Stockholders, jointly and severally among the ▇.▇. ▇▇▇▇▇▇ Selling
Stockholders, and Fulcrum, severally and not jointly, agree to indemnify and
hold harmless the Underwriter, each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act,
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the indemnity set forth in paragraph (a) above; provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information; provided further
that
such Selling Stockholder will be liable in any such case to the extent, but
only
to the extent, that any such loss, liability, claim, damage or expense arises
from any of such documents in reliance on and in conformity with written
information relating to such Selling Stockholder that is furnished to the
Company by such Selling Stockholder specifically and expressly for use therein,
it being understood and agreed
-
28 -
that
such
information includes, without limitation, the information relating to such
Selling Stockholder in the Registration Statement, the Time of Sale Information
and the Prospectus, including in the Prospectus under the caption “Selling
Stockholders;” provided further
that the
liability of any Selling Stockholder pursuant to this subsection (b) shall
not
exceed the aggregate gross proceeds received after underwriting commissions
and
discounts, but before expenses, from the sale of Securities by such Selling
Stockholder pursuant to this Agreement.
(c) Indemnification
by the Underwriter.
The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person,
if
any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 7, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement, the Prospectus (or any amendment
or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any Time of Sale Information.
(d) Actions
against Parties;
Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. Counsel to the indemnified parties shall
be
selected as follows: counsel to the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall be selected by Wachovia; counsel to the
▇.▇. ▇▇▇▇▇▇ Selling Stockholders shall be selected by ▇.▇. ▇▇▇▇▇▇ Partners
(BHCA), L.P.; counsel to Fulcrum shall be selected by MGI Holdings, Inc.; and,
counsel to the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall be selected by the Company. An indemnifying party may participate
at
its own expense in the defense of any such action; provided,
however,
that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for
the Underwriter and each person, if any, who controls the Underwriter within
the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for the Selling Stockholders, and
the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Company, its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, in each case in connection with any one action
or separate but similar or related actions in the same jurisdiction arising
out
of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of
-
29 -
the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf
of
any indemnified party.
(e) Settlement
Without
Consent if Failure to Reimburse. If
at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION
8. Contribution.
If the
indemnification provided for in Section 7 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriter on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriter on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received
by
the Company and the Selling Stockholders and the total underwriting discounts
and commissions received by the Underwriter, in each case as set forth on the
cover of the Prospectus Supplement, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The
relative fault of the Company and the Selling Stockholders on the one hand
and
the Underwriter on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
-
30 -
The
Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered
to
the public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement
or
omission or alleged omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 8, each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Underwriter, and
each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
SECTION
9. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or signed
by
or on behalf of the Selling Stockholders submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made
by
or on behalf of the Underwriter or controlling person, or by or on behalf of
the
Company, or by or on behalf of the Selling Stockholders, and shall survive
delivery of the Securities to the Underwriter.
SECTION
10. Termination
of Agreement.
(a) Termination;
General.
The
Underwriter may terminate this Agreement, by notice to the Company and the
Selling Stockholders, at any time on or prior to the Closing Date (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the reasonable judgment
of the Underwriter, impracticable or inadvisable to
-
31 -
market
the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the NYSE, or if trading generally on
the
American Stock Exchange or the NYSE or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any
other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States
or
in Europe, or (iv) if a banking moratorium has been declared by either
Federal or New York authorities or (v) if there shall have occurred, since
the
time of execution of this Agreement, any downgrading in the rating of any debt
securities, by any “nationally recognized statistical rating organization” (as
defined by the Commission for purposes of Rule 436 under the ▇▇▇▇ ▇▇▇) or any
public announcement that any such organization has under surveillance or review
its ratings on any such debt securities, (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement by any such organization that
the Company has been placed on negative outlook.
(b) Liabilities.
If
this
Agreement is terminated pursuant to this Section 10, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1 (if, and only
if, Securities have been purchased under this Agreement), 7, 8 and 9 hereof
shall survive such termination and remain in full force and effect.
SECTION
11. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriter shall be directed to Wachovia
at
Wachovia Capital Markets, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; notices to the Company shall be directed
to
it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial
Officer; notices to the ▇.▇. ▇▇▇▇▇▇ Selling Stockholders shall be directed
to
them in care of CCMP Capital Advisors, LLC, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and notices to Fulcrum shall be
directed to it at MGI Holdings, Inc., First National Tower, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SECTION
12. Parties.
This
Agreement shall each inure to the benefit of and be binding upon the
Underwriter, the Company and the Selling Stockholders and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter, the Company and the Selling Stockholders and
their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit
of
the Underwriter, the Company and the Selling Stockholders and
their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from the Underwriter
shall be deemed to be a successor by reason merely of such
purchase.
-
32 -
SECTION
13. GOVERNING
LAW AND
TIME.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION
14. Effect
of Headings.
The
Section and Exhibit headings herein are for convenience only and shall not
affect the construction hereof.
SECTION
15. Definitions.
As used
in this Agreement, the following terms have the respective meanings set forth
below:
“Class
B Common Stock”
means
the Class B Common Stock, par value $0.01 per share.
“Commission”
means
the Securities and Exchange Commission.
“▇▇▇▇▇”
means
the Commission’s Electronic Data Gathering, Analysis and Retrieval
System.
“Initial
Registration Statement”
means
the Company’s registration statement on Form S-3 (Registration No. 333-128100),
as amended (if applicable) at the time it became effective, including the
documents incorporated or deemed to be incorporated by reference therein at
such
time pursuant to Item 12 of Form S-3 under the 1933 Act.
“NASD”
means
the National Association of Securities Dealers, Inc.
“NYSE”
means
the New York Stock Exchange.
“preliminary
prospectus”
means
any prospectus supplement used in connection with the offering of the Securities
that was used before the Initial Registration Statement became effective, or
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, or that was captioned “Subject to Completion,” in each case
together with the related prospectus and the documents incorporated or deemed to
be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the
1933 Act.
“Prospectus
Delivery Period”
means
such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriter a prospectus
relating to the Securities is required by law to be delivered (or required
to be
delivered but for Rule 172 under the ▇▇▇▇ ▇▇▇) in connection with sales of
the
Securities by the Underwriter or any dealer.
“Registration
Statement”
means
the Initial Registration Statement; provided
that, if
a Rule 462(b) Registration Statement is filed with the Commission, then the
term
“Registration Statement” shall also include such Rule 462(b) Registration
Statement.
“Rule
405”,
“Rule
424(b)”
and
“Rule
462(b)”
refer
to such rules under the 1933 Act.
-
33 -
“Rule
462(b) Registration Statement”
means
a
registration statement filed by the Company pursuant to Rule 462(b) for the
purpose of registering any of the Securities under the 1933 Act, including
the
documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at the time such registration
statement became effective.
“1933
Act”
means
the Securities Act of 1933, as amended.
“1933
Act Regulations”
means
the rules and regulations of the Commission under the 1933 Act.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended.
“1934
Act Regulations”
means
the rules and regulations of the Commission under the 1934 Act.
All
references to the Registration Statement, the Initial Registration Statement,
any Rule 462(b) Registration Statement, any preliminary prospectus, the Time
of
Sale Information, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to ▇▇▇▇▇.
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus, the Time of Sale Information or the
Prospectus (and all other references of like import) shall be deemed to mean
and
include all such financial statements and schedules and other information which
is incorporated or deemed to be incorporated by reference in the Registration
Statement, any preliminary prospectus, the Time of Sale Information or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus, the Time of Sale Information or the Prospectus shall be deemed
to
mean and include the filing of any document under the 1934 Act which is
incorporated or deemed to be incorporated by reference in the Registration
Statement, such preliminary prospectus, the Time of Sale Information or the
Prospectus, as the case may be.
[Signature
Page Follows]
-
34 -
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this instrument,
along
with all counterparts, will become a binding agreement between the Underwriter
and the Company in accordance with its terms.
|
Very
truly yours
|
||
|
CABELA’S
INCORPORATED
|
||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Title:
|
Vice
President and Chief Financial Officer
|
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS,
L.P.
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS
(CAYMAN), L.P.
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
S-1
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS
(SELLDOWN), L.P.
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS
A, L.P
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS
(CAYMAN) II, L.P.
|
||
|
By:
|
CCMP
Capital Advisors, LLC
as
Attorney In Fact
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
S-2
|
FULCRUM
GROWTH PARTNERS, L.L.C.
|
||
|
By:
|
MGI
Holdings, Inc
as
Managing Member
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Chairman
|
|
S-3
|
CONFIRMED
AND ACCEPTED, as of
the
date first above written:
|
||||
|
WACHOVIA
CAPITAL MARKETS, LLC
|
||||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇
|
|||
| Authorized Signatory | ||||
| ▇▇▇▇ ▇▇▇▇▇ | ||||
| Managing Director | ||||
| Wachovia Capital Markets, LLC | ||||
S-4
EXHIBIT
A
SELLING
STOCKHOLDERS SELLING SECURITIES
|
Number
of
Securities
to be Sold
|
|
|
Name
of Selling Stockholders:
|
|
|
FULCRUM
GROWTH PARTNERS, L.L.C.
|
750,000
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
|
3,505,412
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS, L.P.
|
234,807
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS (CAYMAN), L.P.
|
117,882
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS (SELLDOWN), L.P.
|
79,506
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS A, L.P.
|
36,078
|
|
▇.▇.
▇▇▇▇▇▇ PARTNERS GLOBAL INVESTORS (CAYMAN) II, L.P.
|
13,183
|
|
Total
|
4,736,868
|
A-1
EXHIBIT
B
TIME
OF
SALE INFORMATION
Pricing
Information
|
Cabela’s
Incorporated
|
|||
|
Initial
Public Offering Price
|
$24.05
|
||
|
Shares1
|
4,736,868
|
||
|
Spread
$
|
$0.05
|
||
|
Selling
Concession
|
$0.05
|
||
|
Trade
Date
|
March
8, 2007
|
||
|
Settlement
|
March
14, 2007
|
||
|
Proceeds
to Selling Shareholders
|
$113,684,832
|
||
_____________________
1 No
over-allotment option.
B-1
EXHIBIT
C
SUBSIDIARIES
OF THE COMPANY AND FOREIGN QUALIFICATIONS OF THE
COMPANY
AND SUBSIDIARIES
|
Name
|
Jurisdiction
of Incorporation
and
Jurisdictions of Foreign
Qualification
|
Type
of Entity
|
General
Partner or
Sole
Member, as applicable
|
|
Cabela’s
Catalog, Inc.
|
Nebraska
South
Dakota
|
Corporation
|
|
|
▇▇▇▇▇▇▇.▇▇▇,
Inc.
|
Nebraska
South
Dakota
|
Corporation
|
|
|
Cabela’s
Lodging, LLC
|
Nebraska
|
Limited
Liability
Company
|
Cabela’s
Ventures, Inc.
|
|
Cabela’s
Marketing and
Brand
Management, Inc.
|
Nebraska
South
Dakota
Wisconsin
|
Corporation
|
|
|
Cabela’s
Outdoor
Adventures,
Inc.
|
Nebraska
|
Corporation
|
|
|
Cabela’s
Retail, Inc.
|
Nebraska
Arizona
Colorado
Connecticut
Idaho
Kansas
Michigan
Minnesota
Pennsylvania
South
Dakota
Utah
West
Virginia
Wisconsin
|
Corporation
|
|
|
Cabela’s
Retail GP, LLC
|
Nebraska
Texas
|
Limited
Liability
Company
|
Cabela’s
Retail, Inc.
|
|
Cabela’s
Retail IL, Inc.
|
Illinois
|
Corporation
|
|
|
Cabela’s
Retail LA, LLC
|
Nebraska
Louisiana
|
Limited
Liability
Company
|
Cabela’s
Retail, Inc.
|
|
Cabela’s
Retail MO, LLC
|
Nebraska
Missouri
|
Limited
Liability
Company
|
Cabela’s
Retail, Inc.
|
C-1
|
Name
|
Jurisdiction
of Incorporation
and
Jurisdictions of Foreign
Qualification
|
Type
of Entity
|
General
Partner or
Sole
Member, as applicable
|
|
Cabela’s
Retail TX, L.P.
|
Nebraska
Texas
|
Limited
Partnership
|
Cabela’s
Retail GP, LLC
|
|
Cabela’s
Trophy
Properties,
LLC
|
Nebraska
|
Limited
Liability
Company
|
Cabela’s
Outdoor Adventures,
Inc.
|
|
Cabela’s
Ventures, Inc.
|
Nebraska
Michigan
Minnesota
South
Dakota
West
Virginia
|
Corporation
|
|
|
Cabela’s
Wholesale, Inc.
|
Nebraska
South
Dakota
West
Virginia
Wisconsin
|
Corporation
|
|
|
CRLP,
LLC
|
Nebraska
|
Limited
Liability
Company
|
Cabela’s
Retail, Inc.
|
|
Legacy
Trading Company
|
South
Dakota
|
Limited
Liability
Company
|
▇▇▇
▇▇▇▇ Supply Company, Inc.
|
|
Original
Creations, LLC
|
Minnesota
South
Dakota
|
Limited
Liability
Company
|
▇▇▇
▇▇▇▇ Supply Company, Inc.
|
|
Three
Corners, L.L.C.
|
Minnesota
|
Limited
Liability
Company
|
Cabela’s
Ventures, Inc.
holds
33.3% interest
|
|
TS
Manufacturing, LLC (non-operating shell)
|
Nebraska
|
Limited
Liability
Company
|
Cabela’s
Wholesale, Inc.
|
|
▇▇▇
▇▇▇▇ Supply Company, Inc.
|
South
Dakota
|
Corporation
|
|
|
WFB
Funding Corporation
|
Nebraska
|
Corporation
|
|
|
WFB
Funding, LLC
|
Nebraska
|
Limited
Liability
Company
|
World’s
Foremost Bank holds
60%;
WFB Funding Corporation
holds
40%
|
|
Wild
Wings, LLC
|
Minnesota
|
Limited
Liability
Company
|
Cabela’s
Retail, Inc.
|
|
World’s
Foremost Bank
|
Nebraska
|
Banking
Corporation
|
C-2
|
Name
|
Jurisdiction
of Incorporation
and
Jurisdictions of Foreign
Qualification
|
Type
of Entity
|
General
Partner or
Sole
Member, as applicable
|
|
Cabela’s
Hong Kong,
Limited
|
Hong
Kong
|
Registered
Company
|
C-3
EXHIBIT
D
FORM
OF
OPINION OF COUNSEL FOR THE COMPANY
(i) The
Underwriting Agreement has been duly authorized, executed and delivered by
the
Company.
(ii)
To
the
knowledge of counsel, no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be obtained
or
made by the Company for the consummation of the transactions contemplated by
the
Underwriting Agreement in connection with the sale or distribution of the
Securities, except such as have been obtained and made under the 1933 Act and
1933 Act Regulations and such as may be required under state securities laws
or
the bylaws or rules and regulations of the NASD.
(iii)
The
execution, delivery and performance of the Underwriting Agreement by the Company
and the consummation of the transactions contemplated by the Underwriting
Agreement by the Company will not result in a violation of any of the terms
or
provisions of the charter or by-laws of the Company, or a breach or violation
of
any of the terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any court,
having jurisdiction over the Company or any of its properties or any agreement
or instrument which is filed as an exhibit to the Registration Statement and
to
which the Company is a party or by which the Company is bound or to which any of
the properties of the Company is subject; or, to the knowledge of such counsel,
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company except where the breach, violation,
default, lien, change, claim or encumbrance would not, individually or in the
aggregate, have a Material Adverse Effect.
(iv)
The
descriptions in the Registration Statement, the Time of Sale Information and
Prospectus of statutes, rules and regulations, legal and governmental
proceedings (other than Banking Laws), or legal conclusions with respect
thereto, are accurate in all material respects and fairly present the
information required to be shown; and counsel does not know of any legal or
governmental proceedings required to be described in the Registration Statement,
the Time of Sale Information or the Prospectus which are not described as
required.
(v)
The
Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company” as defined in the Investment
Company Act of 1940.
(vi)
The
Initial Registration Statement was declared effective under the 1933 Act as
of
September 19, 2005, the Prospectus was included in the Initial Registration
Statement, and, to the knowledge of counsel based upon an oral acknowledgement
by the staff of the Commission, no stop order suspending the effectiveness
of
the Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the 1933 Act, and the Registration Statement and the Prospectus, and
each
amendment or supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the requirements of
the
1933 Act and the 1933 Act Regulations.
D-1
(vii) The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus.
(viii) Based
solely on recently dated good standing certificates from the secretaries of
state from the applicable jurisdictions, the Company is duly qualified to do
business as a foreign corporation in good standing in the jurisdictions set
forth on Exhibit C of the Underwriting Agreement.
(ix)
All
of
the issued and outstanding capital stock of the Company has been duly authorized
and validly issued and is fully paid and nonassessable and conforms to the
description thereof contained in the Prospectus.
(x)
Each
Corporate Subsidiary has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus.
(xi) Based
solely on recently dated good standing certificates from the secretaries of
state from the applicable jurisdictions, each Corporate Subsidiary is duly
qualified to do business as a foreign corporation in good standing in the
jurisdictions set forth on Exhibit C of the Underwriting Agreement.
(xii)
All
of
the issued and outstanding capital stock of each Corporate Subsidiary has been
duly authorized and validly issued and is fully paid and nonassessable and,
to
the knowledge of counsel, the capital stock of each Corporate Subsidiary owned
by the Company, directly or through subsidiaries, is, except as disclosed in
the
Registration Statement, the Time of Sale Information or the Prospectus, owned
free from liens, encumbrances and defects.
(xiii) Each
LLC
Subsidiary has been duly organized and is an existing limited liability company
in good standing under the laws of the jurisdiction of its organization, with
limited liability company power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement,
the Time of Sale Information or the Prospectus.
(xiv) Based
solely on recently dated good standing certificates from the secretaries of
state from the applicable jurisdictions, each LLC Subsidiary is duly qualified
to do business as a limited liability company in good standing in the
jurisdictions set forth on Exhibit C of the Underwriting Agreement.
(xv) All
of
the issued and outstanding membership interests of each LLC Subsidiary have
been
duly authorized and validly issued and are fully paid and nonassessable and,
to
the knowledge of counsel, the membership interests of each LLC Subsidiary owned
by the Company, directly or through subsidiaries, are, except as disclosed
in
the Registration Statement, the Time of Sale Information or the Prospectus,
owned free from liens, encumbrances and defects.
D-2
(xvi) Each
limited partnership subsidiary has been duly organized and is an existing
limited partnership in good standing under the laws of the jurisdiction of
its
organization, with limited partnership power and authority to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, the Time of Sale Information or the Prospectus.
(xvii) All
of
the issued and outstanding partnership interest of each limited partnership
subsidiary have been duly authorized and validly issued and are fully paid
and
nonassessable and, to our knowledge, the partnership interests of each limited
partnership subsidiary owned by the Company, directly or through subsidiaries,
except as disclosed in the Registration Statement, the Time of Sale Information
or the Prospectus, are owned free from liens, encumbrances and defects.
(xviii) Each
operating agreement for each LLC Subsidiary is in full force and effect and
constitutes the legal, valid and binding agreement of the parties thereto,
enforceable against such parties in accordance with the terms thereof, except
as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles.
To counsel’s knowledge, there has been no material breach or a default under,
and no event which with notice or lapse of time would constitute a material
breach of or default under, such operating agreements by the Company or any
other subsidiaries or any other party to such agreements.
(xix) Except
as
disclosed in the Registration Statement, the Time of Sale Information or the
Prospectus, there are, to the knowledge of counsel, no contracts, agreements
or
understandings between the Company and any person granting such person the
right
to require the Company to file a registration statement under the 1933 Act
with
respect to any securities of the Company owned or to be owned by such person
or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in the offering contemplated by the
Underwriting Agreement or in any securities being registered pursuant to any
other registration statement filed by the Company under the 1933
Act.
(xxi) Except
as
disclosed in the Registration Statement, the Time of Sale Information or
Prospectus, to the knowledge of counsel, there are no pending actions, suits
or
proceedings against or affecting the Company, any of its subsidiaries or any
of
their respective properties that, if determined adversely to the Company or
any
of its subsidiaries, would, individually or in the aggregate, have a Material
Adverse Effect, and, to the knowledge of counsel, no such actions, suits or
proceedings are threatened or contemplated.
D-3
The
foregoing Opinions are subject to the following qualifications and
limitations:
During
the preparation of the Registration Statement, the Time of Sale Information
and
the Prospectus, such counsel has considered the information set forth therein
in
light of the matters required to be set forth therein and participated in
conferences with officers and other representatives of the Company during the
course of which the contents of the Registration Statement, the Time of Sale
Information and the Prospectus were discussed and, without passing upon or
assuming responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Time of Sale Information
or Prospectus or making any independent check or verification thereof, as a
result of such consideration and preparation, nothing has come to our attention
that would lead us to believe that the Initial Registration Statement, at the
time the Initial Registration Statement became effective or at the time that
the
Company’s Annual Report on Form 10-K for the fiscal year ended December 30,
2006 was filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus
or
any Time of Sale Information, at the time the Prospectus (or any amendment
or
supplement thereto) was issued, any Issuer Free Writing Prospectus was issued
or
any Time of Sale Information was issued or on the date of this letter, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (except in
each
case that we make no statement and express no belief with respect to financial
statements and schedules and other financial or statistical data included or
incorporated by reference in or omitted from the Initial Registration Statement,
any Rule 462(b) Registration Statement or the Prospectus (or any amendment
or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information).
This
Opinion covers matters arising under the federal laws of the United States
of
America,
the
Delaware General Corporation Law and
the laws
of the State of Nebraska.
We are
members of the Bar of the State of Nebraska and we do not hold ourselves out
as
being experts on laws other than the federal laws of the United States, the
Delaware General Corporation Law and the laws of the State of
Nebraska.
Notwithstanding
anything to the contrary set forth above, we neither express nor imply any
opinion as to the Company’s foreign subsidiary known as Cabela’s Hong
Kong.
We
neither express nor imply any opinion as to the enforceability of any provision
in any of the Opinion Documents that provide for the payment of attorneys’ fees
by Company, any Corporate Subsidiary or any LLC Subsidiary.
With
respect to our opinion in Section 2(e) that the Company is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended
(the “1940 Act”), we have relied exclusively, as to all factual matters, on the
certificate, dated as of the date of this opinion letter (the “Officer’s
Certificate”), of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and Chief Financial Officer
of the Company (the “Executing Officer”). We note that, for purposes of
determining whether a particular entity is an “investment company” within the
meaning of the 1940 Act, it is necessary to examine the “value” of the assets of
such entity within the meaning of Section 2(a)(41)(A) of the 1940 Act. Section
2(a)(41)(A)(ii) of the 1940 Act provides that the “value” of certain assets held
by an entity shall be the “fair value” of such assets as of the end of the
previous fiscal quarter as determined in good faith by such entity’s board of
directors (or similar governing body). It is our understanding that the
Executing Officer did not request the Board of Directors of the Company or
of
any of its subsidiaries to determine the value of any assets required to be
valued at “fair value” pursuant to Section 2(a)(41)(A)(ii), but obtained values
from other sources deemed to be reliable. We have assumed, however, with your
permission, that all assets of the Company and its subsidiaries that are
required to be valued at “fair value” pursuant to Section 2(a)(41)(A)(ii) of the
1940 Act by the Board of Directors of the Company or of the relevant subsidiary,
as the case may be, would have been valued at the same values ascribed to such
assets for purposes of the Executing Officer’s analysis in the Officer’s
Certificate had the Board of Directors of the Company or of the relevant
subsidiary determined the “fair value” thereof pursuant to that section.
D-4
EXHIBIT
E
FORM
OF
BANKING
OPINION OF BANKING COUNSEL FOR THE COMPANY
(i) The
execution, delivery and performance of the Underwriting Agreement by the Company
and the consummation of the transactions contemplated by the Underwriting
Agreement will not result in a breach or violation of any Banking Laws by the
Company or the Bank.
(ii) The
descriptions in the Registration Statement, the Time of Sale Information and
the
Prospectus of all Banking Laws under the caption “Risk Factors—We may have to
reallocate capital from our direct and retail businesses to meet the capital
needs of our financial services business, which could alter our destination
retail store expansion program” are accurate in all material respects and fairly
present the information required to be shown.
(iii) Neither
the Company nor any of its subsidiaries is a “bank holding company” within the
meaning of the Bank Holding Company Act of 1956, as amended.
(iv) To
the
knowledge of counsel, (A) except for (1) an order dated May 28, 2003 and issued
by the Nebraska State Department of Banking and Finance approving the Bank’s
application to convert its national credit card bank charter to a Nebraska
credit card bank charter and (2) an order dated February 6, 2001 and issued
by
the FDIC approving the Bank’s application for federal deposit insurance, neither
the Company nor the Bank is subject to any order of the Federal Reserve, the
FDIC, the OCC, the Nebraska State Department of Banking and Finance or any
state
or foreign banking department with jurisdiction over the Company or the Bank
or
their respective operations or any agreement or consent related to compliance
with Banking Laws, or any board resolution adopted at the instigation of, any
such regulatory authorities, (B) neither the Company nor the Bank is in material
violation of any Banking Laws and (C) no material charge, investigation or
proceeding with respect to, or relating to, the Bank is pending or threatened
by
or before any regulatory, administrative or governmental agency, body or
authority.
Nothing
has come to such counsel’s attention that would lead them to believe that the
Initial Registration Statement, at the time the Initial Registration Statement
became effective or at the time that the Company’s Annual Report on
Form 10-K for the fiscal year ended December 30, 2006 was filed with the
Commission, contained an untrue statement of a material fact or omitted to
state
a material fact relating to the Banking Laws required to be stated therein
or
necessary to make the statements therein not misleading or that the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus
or
any Time of Sale Information, at the time the Prospectus (or any amendment
or
supplement thereto) was issued, any Issuer Free Writing Prospectus was issued
or
any Time of Sale Information was issued or on the date of this letter, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein relating
to
the Banking Laws, in the light of the circumstances under which they were made,
not misleading (except in each case that we make no statement and express no
belief with respect to financial statements and schedules and other financial
or
statistical date included or incorporated by reference in or omitted from the
Initial Registration Statement, any Rule 462(b) Registration Statement or
the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information).
E-1
In
the
event that such opinion shall define the term “Registration Statement,” “Initial
Registration Statement,” “Rule 462(b) Registration Statement” or
“Prospectus” (rather than indicating that such terms, as used in such opinion,
have the respective meanings given thereto in the Underwriting Agreement),
such
opinion shall define the terms “Registration Statement,” “Initial Registration
Statement” and “Rule 462(b) Registration Statement” to include the
documents incorporated or deemed to be incorporated by reference therein and
shall define the term “Prospectus” as the Prospectus in the form furnished to
the Underwriter for use in connection with the offering of the Securities (and
not as the Prospectus filed with the Commission pursuant to Rule 424(b)),
including the documents incorporated or deemed to be incorporated by reference
therein.
In
rendering such opinion, Company Banking Counsel shall state that such opinion
covers matters arising under the laws of the States of New York and Nebraska,
the Delaware General Corporation Law and the federal laws of the United States
of America. In rendering such opinion, Company Banking Counsel may rely as
to
matters involving the laws of any other state upon the opinion of local counsel
satisfactory to the Underwriter; provided
that
such opinion shall be addressed to the Underwriter, shall state that Banking
Counsel may rely on such opinion as if it were addressed to them in rendering
their opinion pursuant to the Underwriting Agreement, shall be dated the same
date as the opinion of Company Banking Counsel, shall be delivered to the
Underwriter at the same time that the opinion of Company Banking Counsel is
delivered, and shall be satisfactory in form and substance to counsel for the
Underwriter. In rendering such opinion, Company Banking Counsel may rely, as
to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
E-2
EXHIBIT
F
FORM
OF
OPINION OF COUNSEL FOR THE ▇.▇. ▇▇▇▇▇▇ SELLING STOCKHOLDERS
(i) The
execution and delivery of the Underwriting Agreement by each of the Delaware
Selling Stockholders and the performance by each such Delaware Selling
Stockholder of its obligations under the Underwriting Agreement have been duly
authorized by all necessary action on the part of the Delaware Selling
Stockholders and the Underwriting Agreement has been duly executed and delivered
by each Delaware Selling Stockholder.
(ii) The
execution and delivery by the Delaware Selling Stockholders of the Underwriting
Agreement does not, and the Delaware Selling Stockholders’ performance of their
respective obligations under the Underwriting Agreement will not, (i) violate
their respective Organizational Documents; (ii) violate the current Revised
Uniform Limited Delaware Partnership Act (the “Delaware
Partnership Act”)
or any
current New York or federal statute, rule or regulation that we have, in the
exercise of customary professional diligence, recognized as applicable to the
Delaware Selling Stockholders or to transactions of the type contemplated by
the
Underwriting Agreement, except that we do not express any opinion regarding
the
indemnification and contribution provisions contained in Sections 7 and 8 of
the
Underwriting Agreement; or (iii) violate any existing obligation of, or
restriction on, the Delaware Selling Stockholders under order, judgment or
decree of any New York or federal court or governmental authority both binding
on the Delaware Selling Stockholders and identified in the Certificates.
(iii) No
order,
consent, permit or approval of any New York or federal government authority
that
we have, in the exercise of customary professional diligence recognized as
applicable to the Delaware Selling Stockholders or to transactions of the type
contemplated by the Underwriting Agreement is required on the part of any
Delaware Selling Stockholder for the execution and delivery of, and performance
of each Delaware Selling Stockholder’s respective obligations under, the
Underwriting Agreement except for any such order, consent, permit or approval
which has been duly obtained and is in full force and effect.
(iv) When
the
Selling Stockholder Shares to be sold by the Delaware Selling Stockholders
are
credited by the Depositary Trust Company (“DTC”)
to the
securities account with DTC of the Underwriter and such Underwriter has paid
for
such securities pursuant to the Underwriting Agreement, the Underwriter will
have a security entitlement (as defined in Section 8-102(a)(17) of the New
York
Uniform Commercial Code as currently in effect in the State of New York (the
“NY
UCC”))
with
respect to such securities and no action based on an adverse claim to the
securities underlying such security entitlement, whether framed in conversion,
replevin, constructive trust, equitable lien or other theory, may successfully
be asserted against the Underwriter under the NY UCC.
For
purposes of the opinion expressed in paragraph 4 above, we have assumed that
(a)
the Underwriter acquired its security entitlement without notice of an adverse
claim to the underlying securities and (b) the “securities intermediary’s
jurisdiction” (as defined in Section 8-110(e) of the NY UCC) with respect to the
securities account with DTC of the Underwriter is the State of New York.
F-1
We
express no opinion regarding (i) federal securities laws or regulations, (ii)
Blue Sky or state securities laws or regulations, (iii) insurance laws or
regulations , (iv) compliance with fiduciary requirements, (v) rules of
securities exchanges, (vi) the Trading with the Enemy Act, as amended, the
foreign asset control regulations of the United States Treasury Department,
the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), as amended,
Executive Order No. 13,224 of September 24, 2001, Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, as amended, and any enabling legislation, rules, regulations or
executive orders relating thereto, or (vii) Article 12 Section 270, et seq.
of
the New York Tax Law.
The
law
covered by this opinion letter is limited to the present federal law of the
United States, the present law of the State of New York and the present Delaware
Partnership Act. Our opinion in paragraph 4 above is limited to the law of
the
State of New York. We express no opinion as to the laws of any other
jurisdiction and no opinion regarding the statutes, administrative decisions,
rules, regulations or requirements of any county, municipality, subdivision
or
local authority of any jurisdiction.
F-2
EXHIBIT G
FORM
OF
OPINION OF COUNSEL FOR FULCRUM
(i) Based
solely upon counsel’s review of the certificate evidencing the Securities to be
sold by Fulcrum, immediately prior to such Closing Date, Fulcrum was the sole
record owner of the Securities to be sold by Fulcrum and, to the knowledge
of
counsel, such Securities are owned free and clear of all liens or encumbrances,
and Fulcrum has full limited liability company power and authority to sell,
assign, transfer and deliver the Securities to be sold by Fulcrum as set forth
in the Underwriting Agreement on such Closing Date hereunder.
(ii) If
the
certificates for the Securities to be sold by Fulcrum are delivered to the
Underwriter in the State of New York and assuming (A) the Underwriter purchases
such Securities without notice of any adverse claim (within the meaning of
Section 8-105 of the UCC), (B) the Underwriter makes payment therefore as
provided in the Underwriting Agreement and (C) such Securities are delivered
to
the Underwriter in accordance with the provisions of the Custody Agreement
and
the Underwriting Agreement, the Underwriter would acquire all of the Fulcrum’s
rights and interest in the Securities sold by Fulcrum free of any adverse claim
(within the meaning of Section 8-102(a)(1) of the UCC).
(iii) The
Underwriting Agreement and the transactions contemplated therein have been
duly
authorized by Fulcrum, and the Underwriting Agreement has been duly executed
and
delivered by Fulcrum.
(iv) The
Custody Agreement has been duly authorized, executed and delivered by Fulcrum
and the Custody Agreement constitutes the legal, valid and binding obligations
of Fulcrum enforceable against Fulcrum in accordance with their respective
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles.
(v) The
execution, delivery and performance by Fulcrum of the Underwriting Agreement
and
the Custody Agreement, and the sale and delivery by Fulcrum of the Securities
to
be sold by Fulcrum as contemplated by the Underwriting Agreement and the
consummation of the transactions contemplated in the Underwriting Agreement
do
not and will not (A) violate or contravene (1) any provision of the certificate
of formation, the limited liability company agreement or other organizational
document of Fulcrum, or (2) any statute or regulation which, in the exercise
of
customary professional diligence, counsel recognizes as applicable to
transactions of the type contemplated by the Underwriting Agreement or, to
the
knowledge of counsel, any agreement or other instrument binding upon Fulcrum
or
any judgment order or decree of any governmental body, agency or court having
jurisdiction over Fulcrum of the United States or the laws of the state of
residence or principal place of business of Fulcrum or the state laws governing
the formation or organization of Fulcrum (provided, however, that counsel need
express no opinion with respect to compliance with any federal or state
securities or anti-fraud law, rule or regulation except as otherwise expressly
stated in the opinion of counsel), or
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(B)
require any consent, approval, authorization or order of or registration or
filing with any court or governmental agency or body having jurisdiction over
it
that counsel has, in the exercise of customary professional diligence,
recognized as applicable to Fulcrum or to transactions of the type contemplated
by the Underwriting Agreement is required in connection with the performance
of
the Underwriting Agreement, except such as may be required by the federal
securities laws or the blue sky laws of the various states or under the rules
of
the NASD in connection with the offer and sale of the Securities which have
been
or will be effected in accordance with the Underwriting Agreement, and, with
respect to each of (A)(2) and (B) above, except where such violations or
contravention or failure to obtain such consent, approval, authorization or
order, individually or in the aggregate, would not have a material adverse
effect on the consummation of the transactions contemplated by the Underwriting
Agreement.
In
rendering such opinion, such counsel shall state that such opinion covers
matters arising under the laws of the States of Delaware, Nebraska and New
York,
the Delaware Limited Liability Company Act and the federal laws of the United
States of America. In rendering such opinion, such counsel may rely as to
matters involving the application of the laws of any other jurisdiction upon
the
opinion of local counsel satisfactory to the Underwriter; provided
that
such opinion shall be addressed to the Underwriter, shall state that counsel
to
Fulcrum may rely on such opinion as if it were addressed to them in rendering
their opinion pursuant to the Underwriting Agreement, shall be dated the same
date as the opinion of counsel to Fulcrum, shall be delivered to the Underwriter
at the same time that the opinion of counsel to Fulcrum is delivered, and shall
be satisfactory in form and substance to counsel for the Underwriter. In
rendering such opinion, counsel to Fulcrum may rely, as to matters of fact
but
not as to legal conclusions, to the extent they deem proper, on certificates
of
Fulcrum and public officials. Such opinion shall not state that it is to be
governed or qualified by or that it is otherwise subject to any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
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