Exhibit 1.1
HORIZON LINES,
INC.
Common Stock, par value
$0.01
Underwriting
Agreement
November 15, 2006
J.P. Morgan Securities
Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Certain stockholders named in
Schedule II hereto (the “Selling Stockholders”) of
Horizon Lines, Inc., a Delaware corporation (the
“Company”), propose, subject to the terms and
conditions stated herein, to sell to the Underwriter named in
Schedule I hereto (the “Underwriter”) an aggregate of
2,355,083 shares (the “Shares”) of the Common Stock
(“Stock”), par value $0.01 per share, of the
Company.
1. (a) The Company represents and
warrants to, and agrees with, the Underwriter that:
(i) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-138726) in respect of the Shares has been
filed with the Securities and Exchange Commission (the
“Commission”) on the date hereof; such registration
statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness
of such registration statement or any part thereof has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission, and no notice of objection of the Commission to
the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic
Prospectus”; the various parts of such registration
statement, including all exhibits thereto but excluding any Form
T-1 and including any prospectus supplement relating to the Shares
that is filed with the Commission and deemed by virtue of Rule 430B
to be part of such registration statement, each as amended at the
time such part of the registration statement became effective, are
hereinafter collectively called the “Registration
Statement”; the Basic
Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(a)(ii) hereof),
together with the information disclosed on Schedule III(b) hereof,
is hereinafter called the “Pricing Prospectus”; the
form of the final prospectus relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus or the Prospectus
(whether to information contained, described or disclosed in any
such documents or otherwise) shall be deemed to refer to and
include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act and any documents
filed under the Exchange Act, and incorporated therein, in each
case after the date of the Basic Prospectus or the Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares is hereinafter called
an “Issuer Free Writing Prospectus”);
(ii) For the purposes of this
Agreement, the “Applicable Time” is 5:00 p.m. (Eastern
time) on November 15, 2006. The Pricing Prospectus, as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(iii) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents 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; any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder 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; provided, however, that this
representation and warranty shall not apply to any statements
or
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omissions made in reliance upon and
in conformity with information furnished in writing to the Company
by the Underwriter expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of
this Agreement and prior to the execution of this
Agreement;
(iv) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each
part of the Registration Statement, and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus only, in the
light of the circumstances under which they were made) not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly
for use therein or by a Selling Stockholder expressly for use in
the preparation of the answers therein to Item 7 of Form
S-3;
(v) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(vi) The Company and its
subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal
property (including, but not limited to, vessels) owned by them, in
each case free and clear of all liens, encumbrances and defects
except such as are described in the Pricing Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property
and buildings and vessels held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries;
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(vii) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the
failure to be so qualified could not, individually or in the
aggregate, have a material adverse effect on the business,
properties, financial condition, results of operations or prospects
of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”); and each subsidiary of the
Company has been duly formed and is validly existing as a
corporation or limited liability company, as applicable, in good
standing under the laws of its jurisdiction of
formation;
(viii) The Company has an authorized
capitalization as set forth in the Pricing Prospectus, and all of
the issued shares of capital stock of the Company (including the
Shares) have been duly and validly authorized and issued, and are
fully paid and non-assessable and conform in all material respects
to the description of such capital stock contained in the Pricing
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as set forth in the
Pricing Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims; except as set forth in the Pricing Prospectus, no options,
warrants or other rights issued or granted by the Company or any of
its subsidiaries to purchase, or agreements or other obligations of
the Company or any of its subsidiaries to issue, or other rights
issued or granted by the Company or any of its subsidiaries to
convert any obligations into, shares of capital stock or ownership
interests in the Company’s subsidiaries are outstanding; and
all options, warrants or other rights issued or granted by the
Company or any of its subsidiaries to purchase, agreements or other
obligations of the Company or any of its subsidiaries to issue, or
other rights issued or granted by the Company or any of its
subsidiaries to convert any obligation into, Stock are described in
the Pricing Prospectus;
(ix) The compliance by the Company
with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound
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or to which any of the property or
assets of the Company or any of its subsidiaries is subject, except
for such breaches, conflicts, violations or defaults that could
not, individually or in the aggregate, have a Material Adverse
Effect or a material adverse effect on the Company’s
performance of its obligations hereunder, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the sale
of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have
been obtained under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriter;
(x) Neither the Company nor any of
its subsidiaries is (i) in violation of its Certificate of
Incorporation, By-laws or other organizational or governing
documents or (ii) in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except,
in the case of (ii), for such violations or defaults that could
not, individually or in the aggregate, have a Material Adverse
Effect or a material adverse effect on the Company’s
performance of its obligations hereunder;
(xi) The statements set forth in the
Pricing Prospectus or the Prospectus under the caption
“Description of Capital Stock,” insofar as they purport
to constitute a summary of the terms of the Stock, and under the
captions “Plan of Distribution,”
“Underwriting,” “Risk
Factors — Risks Related to Our
Business — Repeal or substantial amendment of the
Jones Act or its application could have a material adverse effect
on our business” and “Risk
Factors — Risks Related to Our
Business — Restrictions on foreign ownership of our
vessels could limit our ability to sell off any portion of our
business or result in the forfeiture of our vessels” insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in
all material respects;
(xii) Other than as set forth in the
Pricing Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any
of its subsidiaries, could individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(xiii) The Company is not and, after
giving effect to the offering and sale of the Shares, will not be
an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(xiv) Neither the Company nor any of
its affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(xv) Ernst & Young LLP, who
has certified certain financial statements of the Company and its
subsidiaries, is a registered public accounting firm as required by
the Act and the applicable rules and regulations thereunder adopted
by the Commission and the Public Company Accounting Oversight Board
(United States) (“PCAOB”);
(xvi)(A) (i) At the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Shares in
reliance on the exemption of Rule 163 under the Act, the Company
was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (B) at the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Act;
(xvii) The Company has prepared a
plan to comply with the requirements of Section 404 of the
Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) on the
date by which it is required to comply with such requirements, and
is not aware of any reason that it will not comply with the
requirements of any section of Sarbanes-Oxley on the date on which
it becomes subject thereto and on all applicable compliance dates
thereafter, including, without limitation, the requirement
thereunder that its independent auditors and its chief executive
officer and chief financial officer give the certifications and
attestations required thereunder, without qualification;
(xviii) The financial statements
included or incorporated by reference in the Pricing Prospectus
present fairly, in all material respects, the financial position
and the results of operations, changes in stockholders’
equity and cash flows of the entities shown thereby at the
respective dates or for the respective periods shown thereby, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis except that any unaudited financial
statements may not contain all footnotes and disclosures required
by GAAP and may be subject to normal year-end
adjustments;
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(xix) The Company and its
subsidiaries possess all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and have made all
declarations and filings with, all federal, state, local and other
governmental authorities, and all courts and other tribunals,
presently required or necessary to own or lease, as the case may
be, and to operate their respective properties and to carry on
their respective businesses as now or proposed to be conducted as
set forth in the in the Pricing Prospectus (“Permits”),
except where the failure to obtain such Permits (by possession,
declaration or filing) could not, individually or in the aggregate,
have a Material Adverse Effect;
(xx) Except as described in the
Pricing Prospectus or as could not, individually or in the
aggregate, have a Material Adverse Effect, (A) the Company and
each of its subsidiaries is in compliance with and not subject to
any known liability under applicable Environmental Laws (as defined
below), (B) the Company and each of its subsidiaries has made
all filings and provided all notices required under any applicable
Environmental Law, and has, and is in compliance with, all Permits
required under any applicable Environmental Laws and each of them
is in full force and effect, (C) there is no civil, criminal
or administrative action, suit, demand, claim, hearing, notice of
violation or, to the best knowledge of the Company, investigation
by any governmental authority, or judicial or administrative
proceeding, notice or demand letter or written request for
information, pending or, to the best knowledge of the Company,
threatened against the Company or any of its subsidiaries under any
Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated, leased
or controlled by the Company or any of its subsidiaries,
(E) none of the Company or any of its subsidiaries has
received written notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“CERCLA”), or any comparable state law and (F) no
property or facility of the Company or any of its subsidiaries is
(i) listed or, to the best knowledge of the Company, proposed
for listing on the National Priorities List under CERCLA or
(ii) listed in the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated
pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority;
(xxi) For purposes of this
Agreement, “Environmental Laws” means the common law
and all applicable federal, provincial, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions
issued, promulgated, approved or entered thereunder, relating to
pollution or protection of public or employee health or the
environment, including, without limitation, laws relating
to
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(i) emissions, discharges, releases
or threatened releases of hazardous materials into the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials,
and (iii) underground and aboveground storage tanks and
related piping, and emissions, discharges, releases or threatened
releases therefrom;
(xxii) There is no strike or
material labor dispute, slowdown or work stoppage with the
employees of the Company or any of its subsidiaries which is
pending or, to the best knowledge of the Company, threatened;
and
(xxiii) Each of the Company and its
subsidiaries carries insurance in such amounts and covering such
risks as in its reasonable determination is adequate for the
conduct of its business and the value of its properties.
(b) Each of the Selling Stockholders
severally and not jointly represents and warrants to, and agrees
with, the Underwriter and the Company that:
(i) All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and the Power of
Attorney and the Custody Agreement hereinafter referred to, and for
the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement, the Power-of-Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder;
(ii) The sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder is bound or to which
any of the property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of such
Selling Stockholder if such Selling Stockholder is a corporation,
the Partnership Agreement of such Selling Stockholder if such
Selling Stockholder is a partnership, the Certificate of Formation
or Operating Agreement of such Selling Stockholder if such Selling
Stockholder is a limited liability company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
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(iii) Such Selling Stockholder has,
and immediately prior to the Time of Delivery (as defined in
Section 4 hereof) such Selling Stockholder will have, good and
valid title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and
clear of all liens, encumbrances, equities or claims, will pass to
the Underwriter;
(iv) Such Selling Stockholder will
at all times comply with the terms of its agreement delivered
pursuant to Section 7(j) hereof;
(v) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares;
(vi) To the extent that any
statements or omissions made in the Registration Statement, the
Basic Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder
expressly for use therein, the Basic Prospectus and the
Registration Statement did not, and the Prospectus and any further
amendments or supplements to the Registration Statement, the Basic
Prospectus and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will not contain any
untrue statement of a material fact or omit to state therein any
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus and the
Pricing Prospectus only, in the light of the circumstances under
which they were made) not misleading;
(vii) In order to document the
Underwriter’s compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the Time of Delivery
a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof);
(viii) Certificates in negotiable
form representing all of the Shares to be sold by such Selling
Stockholder hereunder have been placed in custody under a Custody
Agreement, in the form heretofore furnished to you (the
“Custody Agreement”), duly executed and delivered by
such Selling Stockholder to American Stock Transfer &
Trust Company as custodian (the “Custodian”), and such
Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the “Power
of Attorney”), appointing the persons
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indicated in Schedule II hereto, and
each of them, as such Selling Stockholder’s attorneys-in-fact
(the “Attorneys-in-Fact”) with authority to execute and
deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriter to the
Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement;
and
(ix) The Shares represented by the
certificates held in custody for such Selling Stockholder under the
Custody Agreement are subject to the interests of the Underwriter
hereunder; the arrangements made by such Selling Stockholder for
such custody, and the appointment by such Selling Stockholder of
the Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of such Selling Stockholder hereunder
shall not be terminated by operation of law, whether if such
Selling Stockholder is an individual, by the death or incapacity of
such Selling Stockholder or, if such Selling Stockholder is an
estate or trust, by the death or incapacity of any executor or
trustee of such estate or trust or the termination of such estate
or trust, or if such Selling Stockholder is a partnership, limited
liability company or corporation, by the dissolution of such
partnership, limited liability company or corporation, or by the
occurrence of any other event; if such individual or any such
executor or trustee should die or become incapacitated, or if such
estate or trust should be terminated, or if such partnership or
corporation should be dissolved, or if any other such event should
occur, before such delivery of the Shares hereunder, certificates
representing such Shares shall be delivered by or on behalf of such
Selling Stockholder in accordance with the terms and conditions of
this Agreement and of the Custody Agreement; and actions taken by
the Attorneys-in-Fact pursuant to the Power of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event.
2. Subject to the terms and
conditions herein set forth, each of the Selling Stockholders
agrees, severally and not jointly, to sell to the Underwriter, and
the Underwriter agrees to purchase from each of the Selling
Stockholders, at a purchase price per share of $25.25, the
aggregate number of Shares to be sold by each of the Selling
Stockholders as set forth opposite their respective names in
Schedule II.
3. Upon the authorization by you of
the release of the Shares, the Underwriter proposes to offer the
Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by
the Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as the
Underwriter
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may request upon at least forty-eight
hours’ prior notice to the Company and the Selling
Stockholders, shall be delivered by or on behalf of the Selling
Stockholders to the Underwriter, through the facilities of The
Depository Trust Company (“DTC”), for the account of
the Underwriter, against payment by or on behalf of the Underwriter
of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by or on behalf of each
of the Selling Stockholders, as their interests may appear, to the
Underwriter at least forty-eight hours in advance. The Selling
Stockholders will cause the certificates representing the Shares to
be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery at the office of DTC or its
designated custodian (the “Designated Office”). The
time and date of such delivery and payment shall be, with respect
to the Shares, 9:30 a.m., New York City time, on November 21,
2006 or such other time and date as the Underwriter and the Selling
Stockholders may agree upon in writing. Such time and date for
delivery of the Shares is herein called the “Time of
Delivery”;
(b) The documents to be delivered at
the Time of Delivery by or on behalf of the parties hereto pursuant
to Section 7 hereof, including the cross receipt for the
Shares to be sold at the Time of Delivery and any additional
documents requested by the Underwriter pursuant to
Section 7(l) hereof, will be delivered at the offices of
Schulte Roth & Zabel LLP, 919 Third Avenue, New York, NY
10022 (the “Closing Location”), and the Shares to be
sold at the Time of Delivery, will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 5:00 p.m., New Y
