<PAGE>
Exhibit 10.30
EXECUTION COPY
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UNDERWRITING AGREEMENT
March 17, 2006
Supremex Income Fund
Supremex Inc.
7213 Cordner
Lasalle, Quebec
Canada
H8N 2J7
Cenveo, Inc.
Cenveo Corporation
One Canterbury Green
201 Broad Street, 6th Floor
Stamford, Connecticut
United States of America
06901
The undersigned, TD Securities Inc., CIBC World Markets Inc., BMO
Nesbitt
Burns Inc., Desjardins Securities Inc., National Bank Financial
Inc., Scotia
Capital Inc., Canaccord Capital Corporation and Genuity Capital
Markets G.P.
(collectively, the "Underwriters" and each individually an
"Underwriter")
understand that Supremex Income Fund (the "Fund") proposes to issue
and sell
to the Underwriters 17,500,000 trust units of the Fund (the
"Purchased
Units"), which Purchased Units shall have the material attributes
described
in and contemplated by the Final Prospectus (as defined below)
dated March
17, 2006 and executed concurrently with the execution of this
Agreement.
The Underwriters propose to distribute the Purchased Units in
Canada
pursuant to the Final Prospectus and in the United States pursuant
to a U.S.
Private Placement Memorandum for the private placement of the
Purchased
Units in the United States in accordance with Rule 144A (as defined
below),
all in the manner contemplated by this Agreement.
Based on the foregoing, and subject to the terms and conditions
contained in
this Agreement, the Underwriters, jointly and not solidarily, on
the basis
of the percentages set forth in section 19 of this Agreement, agree
to
purchase from the Fund and by its acceptance hereof, the Fund
agrees to sell
to the Underwriters, the Purchased Units on the Closing Date (as
defined
below) at a price of $10.00 per Purchased Unit for all but not less
than all
of the Purchased Units (the "Purchase Price"), representing an
aggregate
purchase price of $175,000,000.
By acceptance of this Agreement, the Fund grants to the
Underwriters an
unassignable right to purchase, jointly and not solidarily, up to
2,500,000
additional Units (the "Additional Units") on the same basis as the
purchase
of the Purchased Units to cover over-allotments made in connection
with the
offering of the Purchased Units, if any, and for market
stabilization
purposes, and the Fund covenants and agrees to do all such acts and
things
as may be required or advisable in order for such right to be
exercisable in
the manner described in the Prospectus (defined below). If TD
Securities
Inc. and CIBC World Markets Inc. (together, the "Lead
Underwriters"), on
behalf of the Underwriters, elect to exercise such right, the
Lead
Underwriters shall notify the Fund in writing, which notice shall
specify
the number of
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Additional Units to be purchased by the Underwriters and the date
on which
such Additional Units are to be purchased, which date may be the
same as the
Closing Date but not earlier than the Closing Date and shall not be
later
than 30 days after the Closing Date. Such date shall not be earlier
than
three Business Days (as defined below) nor later than five Business
Days
after the date of such notice. If any Additional Units are
purchased, each
Underwriter agrees, jointly and not solidarily, to purchase that
number of
Additional Units (subject to such adjustments to eliminate
fractional units
as Lead Underwriters may determine) equal to the total number of
Additional
Units to be purchased multiplied by the percentage set out in
section 19 of
this Agreement opposite the name of such Underwriter.
The Purchased Units and the Additional Units are hereinafter
collectively
referred to as the "Units".
In consideration of the Underwriters' agreement to purchase the
Units which
will result from the acceptance by the Fund of this offer, and
in
consideration of the services to be rendered by the Underwriters
in
connection therewith, the Fund agrees to cause AcquisiCo to pay to
the
Underwriters a fee of $0.55 per Unit (the "Underwriting Fee").
Such
Underwriting Fee shall be due and payable at the Closing Time (as
defined
below) against payment for the Purchased Units and, if applicable,
at the
Option Closing Time (as defined below), against payment for the
Additional
Units, as the case may be.
DEFINITIONS
In this Agreement:
"1933 ACT" means the United States Securities Act of 1933, as
amended;
"1934 ACT" means the United States Securities Exchange Act of
1934,
as amended;
"ACQUISICO" means 4273681 Canada Inc.;
"ACQUISITION AGREEMENT" means the acquisition agreement dated as
of
the date hereof among the Fund, Cenveo US and Cenveo providing
for,
among other things, the completion of the transactions
described
under the heading "Funding and Related Transactions -Closing
Transactions" in the Prospectus;
"ADDITIONAL UNITS" has the meaning given to it above;
"AFFILIATE" has the meaning given to it in the Securities Act
(Quebec);
"AGREEMENT" means the agreement resulting from the acceptance
by
the Fund of the offer made by the Underwriters by this letter;
"AMALCO" means (i) prior to the Closing, the corporation to
result
from the amalgamation of Supremex and Cenveo Canada, and (ii)
on
and after the Closing, the corporation to result from the
amalgamation of the corporation referred to in (i) with
AcquisiCo;
"AMENDED PRELIMINARY PROSPECTUS" means the amended and restated
preliminary long form prospectus dated February 24, 2006 (in
both
the English and French languages
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unless the context indicates otherwise) amending and restating
as
of such date the Preliminary Prospectus;
"BUSINESS" means the business of the Material Subsidiaries as
conducted immediately prior to the Closing consisting of the
manufacturing and marketing of a broad range of stock and
custom
envelopes and related products;
"BUSINESS DAY" means any day, other than a Saturday or Sunday,
on
which TD Canada Trust and the Canadian Imperial Bank of
Commerce,
in Montreal, Quebec are both open for commercial banking
business
during normal banking hours;
"CANADIAN SECURITIES LAWS" means all applicable securities laws
in
each of the Qualifying Provinces and the respective rules,
regulations, blanket orders and blanket rulings under such laws
together with applicable published policies, policy statements
and
notices of the securities regulatory authorities in the
Qualifying
Provinces;
"CANADIAN SECURITIES REGULATORS" means the applicable
securities
commission or securities regulatory authority in each of the
Qualifying Provinces;
"CBCA" means the Canada Business Corporations Act and the
regulations thereunder, as amended;
"CDS" means the Canadian Depository for Securities Limited;
"CENVEO" means Cenveo, Inc.;
"CENVEO CANADA" means Cenveo Canada Leasing Company, Inc.;
"CENVEO DEPEW ACQUISITION AGREEMENT" means the asset purchase
agreement among Cenveo, Cenveo US, the Fund, AcquisiCo and
Buffalo
Envelope Inc. and to be entered on the Closing Date providing
for,
among other things, the acquisition by Buffalo Envelope Inc. of
certain assets, and the assumption of certain liabilities, in
each
case of a division of Cenveo US that is engaged in the business
of
providing envelopes and related products directly to consumers
and
to direct mail marketing agents within the upstate New York and
northwest Pennsylvania markets;
"CENVEO US" means Cenveo Corporation;
"COST SUPPORT AGREEMENT" means the cost support agreement
entered
into on or prior to Closing among the Fund and AcquisiCo with
respect to the payment by AcquisiCo of certain Offering and
related
costs;
"CLAIM" has the meaning given to it in section 15(a);
"CLOSING" means the completion of the issue and sale by the Fund
of
the Purchased Units and the purchase by the Underwriters of the
Purchased Units pursuant to this Agreement;
"CLOSING DATE" means March 31, 2006 or such other date as the
Fund
and the Underwriters may agree upon in writing or as may be
changed
pursuant to section 7 but in any event shall not be later than
April 29, 2006;
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"CLOSING TIME" means 8:00 a.m. (Eastern time) on the Closing
Date;
"CLOSING TRANSACTIONS" means the transactions described under
the
heading "Funding and Related Transactions - Closing
Transactions"
in the Prospectus;
"DISTRIBUTION" means a distribution for the purposes of
Canadian
Securities Laws or any of them;
"FINAL MRRS DECISION DOCUMENT" means the decision document
issued
pursuant to NP 43-201 evidencing the issuance by the Canadian
Securities Regulators of a receipt for the Final Prospectus in
accordance with NP 43-201;
"FINAL PROSPECTUS" means the (final) long form prospectus dated
March 17, 2006 (in both the English and French languages unless
the
context indicates otherwise), prepared by the Fund and relating
to
the distribution of the Purchased Units;
"FINANCIAL INFORMATION" means, collectively, the information
appearing in the English language version of the Preliminary
Prospectus, the Amended Preliminary Prospectus, and the Final
Prospectus (a) under the heading "Definition of EBITDA,
Adjusted
EBITDA and Distributable Cash", (b) under the heading
"Prospectus
Summary - Selected Consolidated Financial Information"; (c)
under
the heading "Prospectus Summary - Summary Analysis of
Distributable
Cash"; (d) under the heading "Selected Consolidated Financial
Information"; (e) under the heading "Summary Analysis of
Distributable Cash" (f) under the heading "Reconciliation of
EBITDA
and Adjusted EBITDA to Historical Results"; (g) under the
heading
"Consolidated Capitalization of the Fund"; (h) under the
heading
"Management's Discussion and Analysis of Financial Condition
and
Results of Operation of the Business"; and (i) under the
heading
"Auditors' Consent", together with all non-GAAP financial
information (including, without limitation, EBITDA, Adjusted
EBITDA
and distributable cash) set forth in the Prospectus;
"FINANCIAL STATEMENTS" means the audited balance sheet of the
Fund
as at February 10, 2006, the audited consolidated financial
statements of Supremex for the years ended December 31, 2005,
2004
and 2003, and the unaudited pro forma consolidated financial
statements of the Fund included in the Prospectus, including
all
notes thereto and the auditor's report on such audited
financial
statements, as applicable;
"FUND" has the meaning given to it above;
"FUND DECLARATION OF TRUST" means the declaration of trust made
as
of February 10, 2006, governed under the laws of Quebec,
pursuant
to which the Fund was established, as amended, supplemented or
restated from time to time;
"GAAP" means Canadian generally accepted accounting principles;
"GUARANTEES" means collectively the guarantees by Supremex,
Cenveo
Canada, PNG Inc. and Innova Envelope Inc., as applicable, of
the
obligations of Cenveo and its affiliates and related security
interests granted by such guarantors in support thereof under:
(a)
the US$300 million senior secured credit facility of Cenveo with
a
group of banks which matures in June 2008, (b) the note
indenture
pursuant to which the US$320
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million of 7-7/8% senior subordinated notes of Cenveo due 2013
were
issued, (c) the note indenture pursuant to which the US$350
million
9-5/8% senior notes of Cenveo due 2012 were issued, and (d) any
agreement or instrument ancillary to the agreements referred to
in
(a), (b) or (c) above;
"INDEMNIFIED PARTY" has the meaning given to it in section
15(a);
"INDEMNIFIER" has the meaning given to it in section 15(a);
"INITIAL NOTES" means the unsecured notes issued by the Fund to
Cenveo US in consideration for all of the shares of Amalco;
"LEAD UNDERWRITERS" has the meaning given to it above;
"MANAGEMENT UNITS" means the 2,364,228 trust units of the Fund
to
be issued to certain management employees of Supremex in
accordance
with the Subscription and Escrow Agreement;
"MATERIAL CHANGE" means a material change for the purposes of
Canadian Securities Laws or, where undefined under applicable
Canadian Securities Laws, means a change in the business,
operations or capital of the Fund, Supremex or Amalco that
would
reasonably be expected to have a significant effect on the
market
price or value of the Units and includes a decision to
implement
such a change made by the board of Trustees of the Fund, the
board
of directors or, alternatively, by senior management of Supremex
or
Amalco, as applicable, where they believe that confirmation of
the
decision by the board of directors of Supremex or Amalco, as
applicable, is probable;
"MATERIAL FACT" means a material fact for the purposes of
Canadian
Securities Laws or, where undefined under applicable Canadian
Securities Laws, means a fact that significantly affects or
would
reasonably be expected to have a significant effect on the
market
price or value of the Units;
"MATERIAL SUBSIDIARIES" means Supremex, Cenveo Canada, Amalco,
AcquisiCo and Buffalo Envelope Inc., except where this term is
used
in section 5(b) where "Material Subsidiaries" shall exclude
Cenveo
Canada, and "MATERIAL SUBSIDIARY" means any one of them;
"MISREPRESENTATION" means a misrepresentation for the purposes
of
Canadian Securities Laws or, where undefined under applicable
Canadian Securities Laws, means any untrue statement of a
material
fact or an omission to state a material fact that is required to
be
stated or that is necessary to make a statement not misleading
in
the light of the circumstances in which it was made;
"MRRS" means the Mutual Reliance Review System;
"NP 43-201" means National Policy 43-201 - Mutual Reliance
Review
System for Prospectuses and Annual Information Forms adopted by
the
Canadian Securities Regulators and its related memorandum of
understanding;
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"NEW CREDIT FACILITIES" means the credit facilities to be
established in favour of AcquisiCo on Closing as described in
the
Prospectus under "New Credit Facilities";
"NON-SOLICITATION AGREEMENT" means the non-solicitation
agreement
among the Fund, Amalco, Cenveo US and Cenveo to be entered on
the
Closing Date as described in the Prospectus under "Business of
Supremex - Relationship with Cenveo";
"NOTE INDENTURE" means the note indenture to be entered into on
or
prior to Closing between AcquisiCo and Computershare Investor
Services Inc., as trustee thereunder, pursuant to which
Supremex
will issue Notes, as amended, supplemented or restated from time
to
time;
"NOTES" means the unsecured notes issued by AcquisiCo or Amalco
from time to time in accordance with the Note Indenture;
"NOTICE" has the meaning given to it in section 24;
"OPTION CLOSING" means completion of the sale by the Fund of
the
Additional Units and the purchase by the Underwriters of the
Additional Units pursuant to this Agreement;
"OPTION CLOSING DATE" means the date for the Option Closing set
out
in the notice of exercise of the over-allotment option provided
by
the Underwriters to the Fund or on such other date as the
Underwriters and the Fund may agree, but in no case later than
April 29, 2006;
"OPTION CLOSING TIME" means 8:00 a.m. (Eastern time) on the
Option
Closing Date or such other time on the Option Closing Date as
may
be agreed to by the Fund and the Underwriters;
"OVER-ALLOTMENT NOTE" means the promissory note of the Fund in
favour of Cenveo US, substantially in the form attached to the
Acquisition Agreement, in the amount of $23,625,000, the terms
of
which shall provide, among other things, that such note is
repayable as follows and cannot be repaid otherwise than as
follows: (i) by the issuance of units of the Fund, (ii) in cash
representing the net issue price of the units of the Fund to be
issued upon exercise of the over-allotment option, or (iii) a
combination of (i) and (ii);
"PRELIMINARY PROSPECTUS" means the preliminary long form
prospectus
dated February 15, 2006 (in both the English and French
languages
unless the context indicates otherwise) prepared by the Fund
relating to the distribution of the Units;
"PRELIMINARY U.S. PLACEMENT MEMORANDUM" means the preliminary
U.S.
private placement memorandum of the Fund dated February 24,
2006
for the placement of the Units in the United States in
accordance
with Rule 144A;
"PROSPECTUS" means, collectively, the Preliminary Prospectus,
the
Amended Preliminary Prospectus and the Final Prospectus;
"PROSPECTUS AMENDMENT" means any amendment to the Preliminary
Prospectus, the Amended Preliminary Prospectus or the Final
Prospectus;
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"PURCHASE PRICE" has the meaning given to it above;
"PURCHASED UNITS" has the meaning given to it above;
"QUALIFYING PROVINCES" means all of the provinces of Canada;
"QUALIFYING STATES" means each of the U.S. States into which
the
Purchased Units are offered or sold;
"REGISTRATION RIGHTS AGREEMENT" means the registration rights
agreement to be entered into on or prior to Closing among the
Fund
and Cenveo US as described in the Prospectus under "Funding and
Related Transactions - Registration Rights";
"RELATED AGREEMENTS" means the Fund Declaration of Trust, the
Note
Indenture, the Notes, the Initial Notes, the Over-Allotment
Note,
the Acquisition Agreement, the Tax Escrow Agreement, the New
Credit
Facilities, the Supply Agreement, the Non-Solicitation
Agreement,
the Cenveo Depew Acquisition Agreement, the Subscription and
Escrow
Agreement, the Registration Rights Agreement and the Cost
Support
Agreement;
"REGULATION S" means Regulation S under the 1933 Act;
"RULE 144A" means Rule 144A under the 1933 Act;
"SEC" means the United States Securities Exchange Commission;
"SELLING FIRM" has the meaning given to it in section 3;
"SUBSCRIPTION AND ESCROW AGREEMENT" means the subscription and
escrow agreement described under the heading "Executive
Compensation - Management Profit Sharing Plan" in the
Prospectus;
"SUBSIDIARY" has the meaning given to it in the Securities Act
(Quebec);
"SUPPLY AGREEMENT" means the product supply agreement among the
Fund, Amalco and Cenveo to be entered on the Closing Date as
described in the Prospectus under "Business of Supremex -
Relationship with Cenveo";
"SUPREMEX" means Supremex Inc.;
"TAX ESCROW AGREEMENT" means the escrow agreement to be entered
into on or prior to Closing among Cenveo US, the Fund and TD
Trust
Company., as escrow agent;
"TRANSFER AGENT" means Computershare Investor Services Inc.;
"TRUSTEES" means the trustees of the Funds, appointed from time
to
time;
"TSX" means the Toronto Stock Exchange;
"UNDERWRITER" and "UNDERWRITERS" have the respective meanings
given
to them above;
"UNDERWRITING FEE" has the meaning given to it above;
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"UNITS" has the meaning given to it above;
"U.S. PLACEMENT MEMORANDUM" means the private placement
memorandum
of the Fund dated March 17, 2006 for the placement of the Units
in
the United States in accordance with Rule 144A; and
"U.S. SECURITIES LAWS" means all applicable securities laws of
the
United States including, but not limited to, the 1933 Act and
the
1934 Act and including the state securities laws of each of the
U.S. States in which the Units are offered and the respective
rules, regulations, orders and rulings under such laws,
together
with applicable published policies, policy statements and
notices
of the securities regulatory authorities in the United States
and
in each of the U.S. States.
Unless otherwise expressly provided in this Agreement, words
importing only
the singular number include the plural and vice versa and words
importing
gender include all genders. Reference to "Sections" or "Clauses"
are to the
appropriate section or clause of this Agreement.
The parties acknowledge that this Agreement is being executed on
behalf of
the Fund by its trustee and that the obligations of the Fund
hereunder shall
not be binding upon any of the trustees of the Fund personally or
on any
unitholder of the Fund in any manner whatsoever in respect of
any
indebtedness, obligation or liability of the Fund arising hereunder
or
arising in connection herewith or from the matters to which this
Agreement
relates, if any, including without limitation, claims based on
negligence,
which shall be limited to, and satisfied only, out of the Trust
Assets (as
defined in the Fund Declaration of Trust).
All references to dollars or "$" are to Canadian dollars unless
otherwise
expressed.
TERMS AND CONDITIONS
1.
COMPLIANCE WITH SECURITIES LAWS
The Fund represents and warrants to, and covenants and agrees with,
the
Underwriters that the Fund has prepared and filed the Preliminary
Prospectus
and the Amended Preliminary Prospectus and has obtained pursuant to
NP
43-201 a MRRS decision document evidencing the issuance by the
Canadian
Securities Regulators of receipts for each of the Preliminary
Prospectus and
the Amended Preliminary Prospectus. The Fund will promptly and, in
any event
no later than the Business Day after the execution and delivery of
this
Agreement, prepare and file a Final Prospectus and will obtain the
Final
MRRS Decision Document. The Fund will promptly fulfil and comply
with, to
the reasonable satisfaction of the Underwriters, the Canadian
Securities
Laws required to be fulfilled or complied with by the Fund to
enable the
Units to be lawfully distributed to the public in the Qualifying
Provinces
through the Underwriters or any other investment dealers or
brokers
registered as such in the Qualifying Provinces.
2. DUE
DILIGENCE
Prior to the filing of each of the Preliminary Prospectus and the
Amended
Preliminary Prospectus the Fund has, and prior to the filing of the
Final
Prospectus the Fund shall, permit the Underwriters to review each
of the
Preliminary Prospectus, the Amended Preliminary Prospectus and the
Final
Prospectus and shall allow each of the Underwriters to conduct any
due
diligence
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investigations which any of them reasonably requires in order to
fulfil its
obligations as an underwriter under the Canadian Securities Laws
and U.S.
Securities Laws and in order to enable it to responsibly execute
the
certificate in the Preliminary Prospectus, the Amended
Preliminary
Prospectus and the Final Prospectus required to be executed by it.
Following
the filing of the Final Prospectus and up to the later of the
Closing Date
and the date of completion of the distribution of the Units, the
Fund shall
allow each of the Underwriters to conduct any due diligence
investigations
which any of them reasonably requires.
3.
DISTRIBUTION AND CERTAIN OBLIGATIONS OF THE UNDERWRITERS
(a) Each of
the Underwriters shall, and shall require any
investment dealer or broker, other than the Underwriters,
with which it has a contractual relationship in respect of
the distribution of the Units (a "Selling Firm"), to
comply with the Canadian Securities Laws in connection
with the distribution of the Units in Canada and shall
offer the Units for sale to the public in Canada directly
and through Selling Firms upon the terms and conditions
set out in the Prospectus and this Agreement. Each of the
Underwriters shall, and shall require any Selling Firm to,
offer for sale to the public and sell the Units only in
those jurisdictions where they may be lawfully offered for
sale or sold. The Underwriters shall not, without the
consent of the Fund, distribute the Units outside Canada
and the United States.
(b) Each of
the Underwriters shall, and shall require any
Selling Firm to agree to, distribute the Units in Canada
and in the United States in a manner which complies with
and observe all applicable laws and regulations (including
Rule 144A and Regulation S) in each jurisdiction into and
from which they may offer to sell the Units or distribute
the Prospectus or any Prospectus Amendment in connection
with the distribution of the Units and will not, directly
or indirectly, offer, sell or deliver any Units or deliver
the Prospectus or any Prospectus Amendment to any person
in any jurisdiction other than in the Qualifying Provinces
and the Qualifying States except in a manner which will
not require the Fund to violate any law or comply with the
registration, prospectus, filing or other similar
requirements under the applicable securities laws of such
other jurisdictions.
(c)
For the
purposes of this section 3, each of the
Underwriters shall be entitled to assume that the Units
are qualified for distribution in any Qualifying Province
where a receipt or similar document for the Prospectus
shall have been obtained from the applicable securities
commission following the filing of the Prospectus, and
none of the Underwriters shall be liable in respect of or
in relation to any of the other Underwriters' performance
of their obligations pursuant to this section 3 or
Schedule A.
(d) The Fund
and the Underwriters agree that Schedule A to
this
Agreement, entitled "Rule 144A Sales in the United
States", is incorporated by reference in and shall form
part of this Agreement.
(e) The
Underwriters shall cause the distribution of the Units
to occur in such a manner that less than 49% of the units
are purchased by Non-Residents (as defined in the Fund
Declaration of Trust) and shall, upon the reasonable
request
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of the Fund, provide the Fund with a certificate
specifying the number of Units purchased by Non-Residents
pursuant to such distribution.
4.
DELIVERY OF DOCUMENTS
(a) DELIVERIES
ON FILING
On or prior to the day of the filing of the Final Prospectus, the
Fund shall
deliver to each of the Underwriters:
(i) a copy of
each of the Preliminary Prospectus, the
Amended Preliminary Prospectus and the Final
Prospectus in the English language signed and
certified as required by the Canadian Securities
Laws in the Qualifying Provinces other than
Quebec;
(ii)
a copy of each of the Preliminary Prospectus, the
Amended Preliminary Prospectus and the Final
Prospectus in the French language signed and
certified as required by the Canadian Securities
Laws applicable in Quebec;
(iii) a
copy of any other document required to be filed
along with the Prospectus by the Fund under the
Canadian Securities Laws;
(iv)
a copy of the Preliminary U.S. Placement
Memorandum and the U.S. Placement Memorandum;
(v) opinions
of Stikeman Elliott LLP, dated the date
of each of the Preliminary Prospectus, the
Amended Preliminary Prospectus and the Final
Prospectus, respectively, in form and substance
satisfactory to the Underwriters, Cenveo and
Cenveo US and their counsel, acting reasonably,
addressed to the Underwriters, their counsel, the
Fund, the Trustees, Cenveo and Cenveo US to the
effect that the French language version of each
of the Preliminary Prospectus, the Amended
Preliminary Prospectus and the Final Prospectus,
except for the Financial Statements and Financial
Information, as to which no opinion need be
expressed by such counsel, is, in all material
respects, a complete and proper translation of
the English language version thereof;
(vi)
opinions of Ernst & Young LLP dated the date of
each of the Preliminary Prospectus, the Amended
Preliminary Prospectus and the Final Prospectus,
respectively, in form and substance satisfactory
to the Underwriters, Cenveo and Cenveo US and
their counsel, acting reasonably, addressed to
the Underwriters, their counsel, the Fund, the
Trustees, Cenveo and Cenveo US to the effect that
the
French language version of the Financial
Statements and the Financial Information
contained in each of the Preliminary Prospectus,
the Amended Preliminary Prospectus and the Final
Prospectus is, in all material respects, a
complete and proper translation of the English
language version thereof; and
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(vii) a
"long-form" comfort letter of Ernst & Young
LLP, dated the date of the Final Prospectus (with
the requisite procedures to be completed by such
auditors within two Business Days of the date of
the Final Prospectus), addressed to the
Underwriters, the Trustees, Cenveo and Cenveo US
in form and substance satisfactory to the
Underwriters, Cenveo and Cenveo US, acting
reasonably, with respect to certain financial and
accounting information relating to the Fund,
Supremex
and the Business in the Final
Prospectus, which letter shall be in addition to
the auditors' report contained in the Final
Prospectus and the auditors' comfort letters
addressed to the Canadian Securities Regulators.
(b) PROSPECTUS
AMENDMENTS
In the event that the Fund is required by Canadian Securities Laws
to
prepare and file a Prospectus Amendment, the Fund shall prepare and
deliver
promptly to the Underwriters signed and certified copies of such
Prospectus
Amendment in the English and French language. Any Prospectus
Amendments
shall be in form and substance satisfactory to the Underwriters and
their
counsel. Concurrently with the delivery of any Prospectus
Amendments, the
Fund shall deliver to the Underwriters (and Cenveo and Cenveo US in
the case
of sections 4(a)(vi) and (vii)), with respect to such Prospectus
Amendment,
documents similar to those referred to in sections 4(a)(iii),
(a)(iv),
(a)(v), (a)(vi) and (a)(vii). Subject to their rights under Section
15, the
Underwriters agree to deliver a copy of any Prospectus Amendment to
each
purchaser of Units from the Underwriters.
In addition to the matters set forth above in this section 4 and in
section
9, the Fund shall, in good faith, discuss with the Underwriters any
change,
event or fact contemplated in those sections that is of a nature
that there
may be reasonable doubt as to whether notice should be given to
the
Underwriters under section 9 and shall consult with the
Underwriters with
respect to the form and content of any Prospectus Amendment, it
being
understood and agreed that no such Prospectus Amendment shall be
filed with
any Canadian Securities Regulator prior to being reviewed by
the
Underwriters and their counsel.
(c) COMMERCIAL
COPIES
The Fund shall cause commercial copies of the Final Prospectus in
the
English and French languages and the U.S. Placement Memorandum to
be
delivered to the Underwriters without charge, in such quantities
and in such
cities as the Underwriters may reasonably request to the printer of
such
documents. Such delivery of the Final Prospectus shall be effected
as soon
as possible after filing thereof with, and receipt of a MRRS
decision
document therefor from, the Canadian Securities Regulators but, in
any
event, on or before 5:00 p.m. (Eastern time) on the second Business
Day
following filing of the Final Prospectus. Such deliveries shall
constitute
the consent of the Fund to the Underwriters' use of the Final
Prospectus and
the U.S. Placement Memorandum for the distribution of the Units in
the
Qualifying Provinces and the Qualifying States in compliance with
the
provisions of this Agreement, Canadian Securities Laws and U.S.
Securities
Laws. The Fund shall similarly cause to be delivered commercial
copies of
any Prospectus Amendments. The commercial copies of the Final
Prospectus
shall be identical in content to the electronically transmitted
versions
thereof filed with Canadian Securities Regulators pursuant to the
System for
Electronic Document Analysis and Retrieval.
<PAGE>
- 12 -
(d) PRESS
RELEASES
During the period commencing on the date hereof and until
completion of the
distribution of the Units, the Fund will promptly provide the
Underwriters
drafts of any press releases of the Fund for review by the
Underwriters and
their counsel prior to issuance; the Underwriters covenant to use
best
efforts to complete such review in a timely and reasonable
manner.
5.
REPRESENTATIONS AND WARRANTIES
(a)
REPRESENTATIONS AS TO PROSPECTUS AND PROSPECTUS AMENDMENTS
Filing of each of the Preliminary Prospectus, the Amended
Preliminary
Prospectus, the Final Prospectus and any Prospectus Amendment
shall
constitute a representation and warranty by the Fund and Supremex
solidarily
to the Underwriters that as at their respective dates and as at the
date of
filing of each of the Preliminary Prospectus, Amended
Preliminary
Prospectus, Final Prospectus and any Prospectus Amendment, as
applicable:
(i) all
information and statements (other than
information and statements relating solely to the
Underwriters which was
provided by the
Underwriters in writing specifically for use in
the Preliminary Prospectus, Amended Preliminary
Prospectus, Final Prospectus or any Prospectus
Amendment) contained in the Preliminary
Prospectus, Amended Preliminary Prospectus, Final
Prospectus and any Prospectus Amendment are true
and correct in all material respects and contain
no misrepresentation and constitute full, true
and plain disclosure of all material facts
relating to the Fund, Supremex, the Business and
the Units;
(ii)
no material fact (other than facts relating
solely to the Underwriters) has been omitted from
such disclosure that is required to be stated in
such disclosure or is necessary to make the
statements contained in such disclosure not
misleading in light of the circumstances under
which they were provided or made; and
(iii) such
documents, comply with the requirements of
Canadian Securities Laws.
Such filings shall also constitute the Fund's consent to the
Underwriters'
use of the Final Prospectus and any Prospectus Amendment in
connection with
the distribution of the Units in the Qualifying Provinces in
compliance with
this Agreement and Canadian Securities Laws.
(b)
REPRESENTATIONS AND WARRANTIES OF THE FUND AND SUPREMEX
The Fund and Supremex solidarily represent and warrant to the
Underwriters
that, and acknowledge that the Underwriters are relying upon
such
representations and warranties in purchasing the Units, if any:
(i) the Fund
is an unincorporated open-ended trust
established under the laws of the Province of
Quebec pursuant to the Fund Declaration of Trust
and the Trustees, acting in their capacity as
trustees of the Fund, have all
<PAGE>
- 13 -
necessary power and authority to administer, control
and hold title to the Fund's assets and execute the
Fund's undertaking, and to enter into and perform
the Fund's obligations under this Agreement and
each of the Related Agreements to which it is a
party;
(ii)
Gilles Cyr is, as of the date hereof, the sole
Trustee of the Fund and, upon Closing, the
persons identified as Trustees in the Prospectus
will have been duly appointed as trustees;
(iii) (A)
immediately prior to Closing and completion
of the Closing Transactions, the Fund's
authorized capital consists of an unlimited
number of Units of which 10 Units are issued and
outstanding as of the date hereof; (B)
immediately following Closing, assuming the
over-allotment option has not been exercised,
there will be 31,311,667 Units issued and
outstanding; (C) except for the over-allotment
option, no person, firm or corporation has any
agreement or option, or right or privilege
(whether pre-emptive or contractual) capable of
becoming an option or other agreement for the
purchase from the Fund of any unissued Units or
other securities of the Fund; and (D) immediately
following Closing, the Fund will not hold
interests in any other entity other than the
Material Subsidiaries;
(iv)
each of the Material Subsidiaries (other than
Amalco) is a corporation validly existing under
the laws of its jurisdiction of incorporation and
has all necessary corporate power and authority
to own, lease and operate its assets and to carry
on its business as described in the Prospectus
(including the Business), and to enter into and
perform its obligations under each of the Related
Agreements to which it is a party;
(v)
immediately after Closing and completion of the
Closing Transactions, Amalco will be a
corporation validly existing under the CBCA and
will have all necessary corporate power and
authority to own, lease and operate its assets
and to carry on its business as described in the
Prospectus (including the Business), and to enter
into and perform its obligations under each of
the Related Agreements to which it is a party;
(vi)
(A) immediately after Closing and completion of
the Closing Transactions, the Fund will be the
registered owner, as the case may be, of all of
the issued and outstanding shares of Amalco and
Amalco will be the registered owner of all of the
issued and outstanding shares of Buffalo Envelope
Inc.; and (B) no person, firm or corporation has
any agreement or option, or right or privilege
(whether pre-emptive or contractual) capable of
becoming an option or other agreement for the
purchase from any of the Material Subsidiaries of
any unissued share or other security of such
Material Subsidiary;
(vii)
neither the Fund nor any of the Material
Subsidiaries is in violation of, and the
execution and delivery of this Agreement, the
performance by each of the Fund and the Material
Subsidiaries of its respective obligations under
<PAGE>
- 14 -
this Agreement and each of the Related Agreements
to which it is a party, and the consummation of
the Closing Transactions by each of the Fund and
the Material Subsidiaries (as applicable) will
not result
in any breach or violation of, or be
in conflict with, or constitute a default under,
or create a state of facts which after notice or
lapse of time, or both, would constitute a
default under, (A) any term or provision of its
respective constating documents or by-laws, (B)
any resolution of the Trustees or unitholders of
the Fund or directors or securityholders of any
of the Material Subsidiaries, or (C) except as
would not have a material adverse effect on the
business, results of operations or financial
condition of the Fund and the Material
Subsidiaries taken as a whole, any contract,
hypothec, mortgage, note, indenture, joint
venture or partnership arrangement, or other
agreement (written or oral) to which any of the
Fund or the Material Subsidiaries is a party, or
any instrument, judgment, decree, order, statute,
rule, licence or regulation applicable to any of
the Fund or the Material Subsidiaries;
(viii) no
approval, authorization, consent or other
order of, and no filing, registration or
recording with any governmental authority is
required of any of the Fund or the Material
Subsidiaries in connection with the execution or
with the performance of this Agreement by the
Fund and Supremex, the consummation by the Fund
and the Material Subsidiaries of the Closing
Transactions (including in respect of the
transfers of securities to be made in connection
therewith) or to comply with Canadian Securities
Laws with regard to the distribution of the Units
in the Qualifying Provinces or with U.S.
Securities Laws with regard to the distribution
of the Units in the Qualifying States, except
such as may be required by the securities or blue
sky laws of the various states in connection with
the offer and sale of the Units (as to which no
representation or warranty is given);
(ix)
this Agreement has been duly authorized, executed
and delivered by each of the Fund and Supremex
and constitutes a legal, valid and binding
obligation of the Fund and Supremex enforceable
against the Fund and Supremex in accordance with
its terms, except as enforcement hereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the rights of creditors generally and
except as limited by the application of equitable
principles when equitable remedies are sought and
subject to the fact that rights of indemnity and
contribution may be limited by applicable law;
(x) at, before
or immediately after Closing, as
applicable, each of the Related Agreements to
which each of the Fund and/or any of the Material
Subsidiaries is a party will have been duly
authorized, executed and delivered by the Fund
and/or such Material Subsidiaries, as applicable,
and will constitute a legal, valid and binding
obligation of the Fund and each such Material
Subsidiary enforceable against the Fund and each
such Material Subsidiary in accordance with its
terms, except as enforcement
<PAGE>
- 15 -
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the rights of creditors generally and
except as limited by the application of equitable
principles when equitable remedies are sought and
subject to the fact that rights of indemnity and
contribution may be limited by applicable law;
(xi)
the description of each of the Related Agreements
in the Prospectus is, in all material respects, a
true, complete and accurate description of the
material terms and conditions of each such
Related Agreement;
(xii) the
description of the securities of the Fund,
and Supremex in the Prospectus is, in all
material respects, a true, complete and accurate
description of the rights, privileges,
restrictions, terms and conditions attaching to
such securities;
(xiii) no
agreement is currently in force or effect
which, in any manner, affects the voting or
control of any of the securities of the Fund and,
at the Closing Time, no such agreement will be in
force or effect;
(xiv) at
the Closing Time, the Purchased Units will be
validly created and be duly authorized and issued
as fully-paid and non-assessable;
(xv)
if applicable, at the Option Closing Time, the
Additional Units will be validly created and duly
authorized and issued
as fully-paid and
non-assessable;
(xvi) no
securities commission, stock exchange or
comparable authority has issued any order
preventing or suspending the use or effectiveness
of the Preliminary Prospectus, the Amended
Preliminary Prospectus, the Final Prospectus, or
any Prospectus Amendment or preventing the
distribution of the Units, if any, in any
Qualifying Province nor instituted proceedings
for that purpose and, to the knowledge of the
Fund, no such proceedings are pending or
contemplated;
(xvii) at the
Closing Time, Computershare Investor
Services Inc, at its offices in the cities of
Montreal and Toronto, will have been duly
appointed as registrar, transfer agent and
distribution disbursing agent for the Units;
(xviii) except as
disclosed in the Prospectus, there is
no litigation or governmental or other proceeding
or investigation at law or in equity before any
court or before or by any federal, provincial,
state, municipal or other governmental or public
department, commission, board, agency or body,
domestic or foreign, pending or, to the Fund's or
Supremex's knowledge, threatened (and none of the
Fund or Supremex knows of any basis therefor)
against, or involving the assets, properties or
business of, the Fund or any of the Material
Subsidiaries nor are there any matters under
discussion with any governmental authority
relating to taxes, governmental charges or
assessments asserted by any such authority which
would have a material adverse effect on the
business, results of
<PAGE>
- 16 -
operations or financial condition of the Fund and
the Material Subsidiaries, taken as a whole;
(xix) the
Units have been conditionally approved for
trading on the TSX subject to satisfaction of the
listing conditions set forth in the conditional
approval letter of the TSX dated March 16, 2006;
(xx)
the Fund is not a non-resident of Canada under
the Income Tax Act (Canada) and, subject to
meeting the minimum distribution requirements
with respect to the purchasers of the Units
pursuant to paragraph 132(6)(c) of the Income Tax
Act
(Canada) and the filing of an election under
sub-section 132(6.1) of the Income Tax Act
(Canada), the Fund will, at the Closing Date,
qualify as a "mutual fund trust" under the Income
Tax Act (Canada);
(xxi) the
Financial Statements in the Prospectus and
any Prospectus Amendment have been prepared in
accordance with the applicable books and records
of the Fund and Supremex and present fairly in
all material respects (on a pro forma basis when
applicable) the consolidated financial position
of the Fund and Supremex, as applicable, as of
the applicable dates, and the results of
operations and cash flows of the Fund and
Supremex, as applicable, for the applicable
periods, except as otherwise indicated in the
Financial Statements.
(xxii) Except as
reflected, reserved against or
otherwise disclosed in the Financial Statements,
as of December 31, 2005, Supremex did not have
any liabilities or obligations of any nature
(whether absolute, accrued, contingent or
otherwise) that would have been required to be
reflected by it in the balance sheet of Supremex
dated as of such date included in the Financial
Statement in accordance with GAAP, with such
exceptions as are not, individually or in the
aggregate, reasonably likely to result in a
material adverse effect on the business,
financial condition or results of operations of
the Fund and the Material Subsidiaries, taken as
a whole;
(xxiii) none of the
Fund or any of the Material
Subsidiaries has incurred any liabilities or
obligations of any nature (whether accrued,
absolute, contingent or otherwise) that continue
to be outstanding, except as disclosed in the
Financial Statements or the Prospectus, or
incurred in the ordinary course of business,
other than those liabilities and obligations that
are not, individually or in the aggregate,
reasonably likely to result in a material adverse
effect on the business, financial condition or
results of operations of the Fund and the
Material Subsidiaries, taken as a whole;
(xxiv) other
than in connection with the Closing
Transactions or as otherwise disclosed in the
Final Prospectus, since December 31, 2005:
(A) the
Material Subsidiaries have operated
their business (including the Business),
taken as a whole, in the ordinary
course;
<PAGE>
- 17 -
(B) there has
not been any material adverse
change in the assets, liabilities,
business, financial condition or results
of operations of the Fund and the
Material Subsidiaries, taken as a whole;
(C)
there has
not been any acquisition of
all or substantially all of the assets
or properties or of the securities or
business of any other person by the Fund
or any of the Material Subsidiaries or
any merger, consolidation or
amalgamation involving the Fund or any
Material Subsidiaries;
(D) none of
the Fund or any of the Material
Subsidiaries has transferred, assigned,
sold, distributed, dividended or
otherwise disposed of any of the
material assets shown or reflected in
the Financial Statements or cancelled
any material
debts or entitlements;
(E) through
the date of this Agreement,
there has not been any incurrence by the
Fund or any Material Subsidiary of any
indebtedness for borrowed money or
incurrence, assumption or guarantee of,
or any other act to become responsible
for, any liabilities or obligations or
indebtedness of any other person, or
making of loans or advances by the Fund
or any Material Subsidiary to any
person, other than in the ordinary
course of business; or
(F) there has
not been any change in the
financial or accounting practices or
policies of any Material Subsidiaries,
except as required by applicable
legislation or GAAP;
(xxv) the
Financial Information (other than the
information described in items (b), (d), (g), (h)
and (i) of such term) and the unaudited pro forma
consolidated financial statements of the Fund
included in the Prospectus has been properly
compiled to give effect to the assumptions and
adjustments described in respect thereof, which
assumptions are reasonable;
(xxvi) each of
the Fund and Material Subsidiaries
maintains or, at the Closing Date, will have
established and will maintain a system of
internal accounting controls sufficient to
provide reasonable assurance that: (A)
transactions are executed in accordance with
management's general or specific authorizations;
(B) transactions are recorded as necessary to
permit the preparation of financial statements in
conformity with GAAP and to maintain
accountability for assets; (C) access to assets
is permitted only in accordance with management's
general or specific authorizations; and (D) the
recorded accountability for assets is compared
with the existing assets at reasonable intervals
and appropriate action is taken with respect to
any differences;
<PAGE>
- 18 -
(xxvii) the reports
and statistical and market-related
data included in the Prospectus are derived from
sources which were provided to Supremex and which
Supremex reasonably and in good faith believes to
be accurate and reliable;
(xxviii) other than as discussed in the Prospectus, no
acquisitions or dispositions have been made by
Supremex in the three most recently completed
fiscal years that are "significant acquisitions"
or "significant dispositions" and neither the
Fund nor
any of the Material Subsidiaries are a
party to any contract with respect to any
transaction that would constitute a "probable
acquisition", in each case which would require
disclosure in the Prospectus pursuant to
Regulation Q-28 respecting General Prospectus
Requirements or similar requirements of other
Canadian Securities Laws;
(xxix) Ernst
& Young LLP are independent with respect to
the Fund and the Material Subsidiaries within the
meaning of the Canadian Securities Laws and of
the Code of Ethics of Chartered Accountants of
Quebec and there has not been any "reportable
event" (within the meaning of Regulation 51-102
concerning Continuous Disclosure Obligations
(Quebec)) with the auditors of the Fund or any of
the Material Subsidiaries with respect to the
last three years, as if each had been a public
reporting issuer during that time;
(xxx) no
trustee, director or officer, former trustee,
director or officer, unitholder, shareholder or
employee of, or any other person not dealing at
arm's length with, the Fund or any of the
Material Subsidiaries, and their respective
directors, officers or employees, will continue
after the Closing Time to be engaged in any
material transaction or arrangement with, to be a
party to a material contract with, or to have any
material indebtedness, liability or obligation
to, the Fund or any of the Material Subsidiaries,
except as disclosed in the Prospectus;
(xxxi) the
minute books and related records of Supremex,
PNG Inc. and Innova Envelope Inc. made available
to counsel for the Underwriters in connection
with their due diligence investigation in respect
of the offering of the Units constitute all of
the minute books and related records of any
Material Subsidiaries and, to the knowledge of
Supremex, contain copies of all proceedings (or
certified copies thereof) of the shareholders,
the boards of directors and all committees of the
boards of directors of any Material Subsidiaries
to the date of review of such corporate records
and minute books and, to the knowledge of
Supremex, there have been no other meetings,
resolutions or proceedings of the shareholders,
board of directors or any committees of the board
of directors of any Material Subsidiaries to the
date of review of such corporate records and
minute books not reflected in such minutes and
other records, other than those which have been
disclosed to the Underwriters;
(xxxii) except as
contemplated hereby, there is no person
acting or purporting to act at the request of the
Fund or any of the Material Subsidiaries who is
<PAGE>
- 19 -
entitled to any brokerage or agency fee in
connection with the sale of the Units; and
(xxxiii) each of the representations and warranties made
by Cenveo and Cenveo US in sections 3.6 to 3.26
inclusively of the Acquisition Agreement to the
Fund and Supremex and each of the representations
and warranties of Cenveo US in sections 3.4 to
3.14 inclusively of the Cenveo Depew Acquisition
Agreement to Buffalo Envelope Inc. are true and
correct as of the date hereof and are hereby
incorporated by reference into this Agreement and
shall apply mutatis mutandis as if they were
representations and warranties made by the Fund
and Supremex to the Underwriters in this
Agreement.
(c)
REPRESENTATIONS AND WARRANTIES OF CENVEO AND CENVEO US
Cenveo and Cenveo US hereby solidarily represent and warrant
that,
as of the date hereof and as at the Closing Time, the following
to
the Underwriters and acknowledges that the Underwriters are
relying upon such representations and warranties in purchasing
the
Units:
(i) it is a
corporation validly existing under the
laws of the State of Colorado or Delaware, as
applicable, and has all necessary power and
authority to own, lease and operate its assets,
to carry on its business, and to enter into and
perform its obligations under this Agreement and
each of the Related Agreements to which it is a
party;
(ii)
the execution of this Agreement and each of the
Related Agreements to which it is a party, and
the performance of its obligations hereunder and
thereunder has been duly authorized by all
necessary corporate action on its part;
(iii) it
is not in violation of, and the execution of
each of this Agreement and the Related Agreements
to which it is a party, the performance by it of
its obligations under this Agreement and each of
the Related Agreements to which it is a party and
the consummation of the Closing Transactions by
it will not result in any breach or violation of,
or be in conflict with, or constitute a default
under, or create a state of facts which after
notice or lapse of time, or both, would
constitute a default under, (A) any term or
provision of its constating documents or by-laws,
(B) any resolution of its directors or
securityholders,
or (C) with such exceptions as
do not have a material adverse effect on the
ability of Cenveo or Cenveo US to perform their
respective obligations pursuant to this Agreement
and except for such consents as may be required
in relation to item (x) below which will have
been obtained on or prior to the Closing Date,
any contract, hypothec, mortgage, note,
indenture, lease, joint venture or partnership
arrangement or other agreement (written or oral)
to which it is a party, or any instrument,
judgment, decree, order, statute, rule, licence
or regulation applicable to it, including without
limitation (x) the US$300 million senior secured
credit facility of Cenveo with a group of banks
which matures in
<PAGE>
- 20 -
June 2008, (y) the note indenture pursuant to which
the US$320 million of 7-7/8% senior subordinated
notes of Cenveo due 2013 were issued, and (z) the
note indenture pursuant to which the US$350
million 9-5/8% senior notes of Cenveo due 2012
were issued;
(iv)
each of this Agreement and the Related Agreements
to which it is a party constitutes a legal, valid
and binding obligation of each of Cenveo and
Cenveo US, enforceable against it in accordance
with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the rights of creditors generally and
except as limited by the application of equitable
principles when equitable remedies are sought and
subject to the fact that rights of indemnity and
contribution may be limited by applicable law;
(v) none of
Cenveo, Cenveo US or any of their
respective controlled affiliates (other than the
Fund and Supremex and their respective
subsidiaries), directors officers or employees,
or any other person not dealing at arm's length
with Cenveo, Cenveo US or any of their respective
controlled affiliates (other than the Fund and
Supremex and their respective subsidiaries) will
continue after the Closing Time to be engaged in
any transaction or arrangement with, to be a
party to a contract with, or to have any
indebtedness, liability or obligation to, the
Fund or any of the Material Subsidiaries, except
as disclosed in the Prospectus or contemplated by
the Related Agreements;
(vi)
Cenveo Canada is a corporation validly existing
under the laws of Nova Scotia and has all
necessary corporate power and authority to enter
into and perform its obligations under each of
the Related Agreements to which it is a party;
(vii)
Immediately prior to the amalgamation of Supremex
with Cenveo Canada to form Amalco, (A) Cenveo US
will be the registered owner of all of the issued
and outstanding shares of Cenveo Canada, and (B)
other than pursuant to the Acquisition Agreement,
no
person, firm or corporation has any agreement
or option, right or privilege (whether
pre-emptive or contractual) capable of becoming
an option or other agreement for the purchase of
any unissued share or other security of Cenveo
Canada;
(viii) (w)
Cenveo Canada is not in violation of, and its
continuation under the CBCA and the consummation
of its amalgamation with Supremex to form Amalco
will not result in, and (x) the performance by
Amalco of its obligations under the Related
Agreements to which Amalco is a party and the
consummation of the Closing Transactions by
Amalco will not result in, any breach or
violation of, or be in conflict with, or
constitute a default under, or create a state of
facts which after notice or lapse of time, or
both, would constitute a default under: (A) any
term or
provision of the constating documents or
by-laws of Cenveo Canada, (B) any resolution of
the directors or securityholders of Cenveo
Canada, or (C) with such exceptions as do not
have a material adverse effect on (y) the ability of
<PAGE>
- 21 -
Cenveo Canada to effect its continuation under
the CBCA and consummate its amalgamation with
Supremex to form Amalco, and (z) the ability of
Amalco to perform its obligations under the
Related Agreements to which Amalco is a party and
to consummate the Closing Transactions, any
contract, hypothec, mortgage, note, indenture,
joint venture or partnership arrangement, or
other agreement (written or oral) to which Cenveo
Canada is a party, or any instrument, judgment,
decree, order, statute, rule, licence or
regulation applicable to Cenveo Canada;
(ix)
at, before or immediately after Closing, as
applicable, each of the Related Agreements to
which Cenveo Canada is a party will have been
duly authorized, executed and delivered by Cenveo
Canada and will constitute a legal, valid and
binding obligation of Cenveo Canada enforceable
against Cenveo Canada in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the rights of creditors generally and
except as limited by the application of equitable
principles when equitable remedies are sought and
subject to the fact that rights of indemnity and
contribution may be limited by applicable law;
(x) except as
disclosed in the Prospectus, there is
no litigation or governmental or other proceeding
or investigation at law or in equity before any
court or before or by any federal, provincial,
state, municipal or other governmental or public
department, commission, board, agency or body,
domestic or foreign, pending against, or
involving the assets, properties or business of,
Cenveo Canada nor are there any matters under
discussion with any
governmental authority
relating to taxes, governmental charges or
assessments asserted by any such authority which
would have a material adverse effect on the
business, results of operations or financial
condition of Cenveo Canada, Supremex and its
subsidiaries taken as a whole; and
(xi)
other than the sections of the Prospectus
entitled "Canadian Income Tax Considerations" and
"Eligibility for Investment" and the information
and statements relating solely to the
Underwriters as to which no representation is
given, the Prospectus constitutes full, true and
plain disclosure of all material facts relating
to the Business and does not contain any
misrepresentation.
(d) SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
(i) The
representations, warranties, obligations and
agreements of the Fund and Supremex contained in
this Agreement and in any certificate delivered
pursuant to this Agreement or in connection with
the purchase and sale of the Units shall survive
the purchase of the Units and shall continue in
full force and effect for a period of 18 months
from the Closing Date unaffected by any
subsequent disposition of the Units by the
Underwriters or the termination of the
Underwriters' obligations and shall not be
limited or prejudiced by any investigation made
by or on behalf of the
<PAGE>
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Underwriters in connection with the preparation of
the Prospectus, any Prospectus Amendments or the
distribution of the Units, except that: (w) the
representations and warranties set out in
sections 5(a), 5(b)(xi) and 5(b)(xii) (and the
related indemnity obligation with respect to the
foregoing sections) shall survive for a period of
90 days following the date on which the Fund is
no longer liable under Canadian Securities Laws
for a misrepresentation under the Prospectus, (x)
the representations and warranties set out in
sections 5(b)(i) to 5(b)(vi) inclusively,
5(b)(vii)(A) and (B), 5(b)(ix), 5(b)(xiv) and
5(b)(xv) (and the related indemnity obligation
with respect to the foregoing sections) shall
survive the Closing and continue in full force
and effect without limitation of time, (y) the
representations and warranties set out in section
5(b)(xxxiii) (and the related indemnity
obligation with respect to the foregoing section)
shall be subject to the time limitations set
forth in section 7.1 of the Acquisition
Agreement, and (z) a claim for any breach of any
of the representations and warranties of the Fund
or Supremex contained in this Agreement involving
fraud shall not be subject to any limitation of
time.
(ii)
The representations, warranties, obligations and
agreements of Cenveo and Cenveo US contained in
this Agreement and in any certificate delivered
pursuant to this Agreement or in connection with
the purchase and sale of the Units shall survive
the purchase of the Units and shall continue in
full force and effect for a period of 18 months
from the Closing Date unaffected by any
subsequent disposition of the Units by the
Underwriters or the termination of the
Underwriters' obligations and shall not be
limited or prejudiced by any investigation made
by or on behalf of the Underwriters in connection
with the preparation of the Prospectus, any
Prospectus Amendments or the distribution of the
Units, except that: (x) the representations and
warranties set out in section 5(c)(i), 5(c)(ii),
5(c)(iii)(A), 5(c)(iii)(B), 5(c)(iv), 5(c)(vi),
5(c)(viii)(A), 5(c)(viii)(B) and 5(c)(ix) (and
the related indemnity obligation with respect to
the foregoing sections) shall survive the Closing
and continue in full force and effect without
limitation of time, and (y) the representations
and warranties set out in and sections 5(c)(x)
and 5(c)(xi) (and the related indemnity
obligation with respect to the foregoing
sections) inclusively shall survive until the
date that is three years and 90 days following
the Closing Date (i.e., the date on which the
Fund is no longer liable under Canadian
Securities Laws for a misrepresentation under the
Prospectus).
6.
COVENANTS OF THE FUND
The Fund covenants and agrees with the Underwriters, Cenveo and
Cenveo US
that:
(a) it will
advise the Underwriters, promptly after receiving
notice thereof, of the time when the Final Prospectus has
been filed and when the Final MRRS Decision Document in
respect thereof and any other receipts have been obtained
and will provide evidence satisfactory to the Underwriters
of each filing and the issuance of the Final MRRS Decision
Document and any other receipts;
<PAGE>
- 23-
(b) it will
advise the Underwriters, promptly after receiving
notice or obtaining knowledge, of: (i) the issuance by any
Canadian Securities Regulator of any order suspending or
preventing the use of the Preliminary Prospectus, the
Amended Preliminary Prospectus, the Final Prospectus or
any Prospectus Amendment; (ii) the suspension of the
qualification of the Units for distribution or sale in any
of the Qualifying Provinces; (iii) the institution or
threatening of any proceeding for any of those purposes;
or (iv) any requests made by any Canadian Securities
Regulator for amending or supplementing the Prospectus, or
for additional information, and will use its commercially
reasonable efforts to prevent the issuance of any such
order and, if any such order is issued, to obtain the
withdrawal of the order promptly;
(c) it will, and will
cause each of the Material Subsidiaries
to, apply the proceeds from the issue and sale of the
Units in accordance with the disclosure set out under the
heading "Use of Pro
