•] Shares COMSCORE, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[•] Shares
Common Stock
[•], 2007
Credit Suisse Securities (USA) LLC, |
As Representative of the Several Underwriters, |
Eleven Madison Avenue, |
New York, N.Y. 10010-3629 |
Dear Sirs:
1. Introductory. comScore, Inc., a Delaware corporation (“Company”), proposes to issue and
sell to the several Underwriters named in Schedule B (“Underwriters”) to this Underwriting
Agreement (this “Agreement”) [•] shares of its Common Stock, par value $0.001 per share
(“Securities”). The shares of Securities to be issued and sold by the Company to the several Underwriters shall be hereinafter
referred to collectively as the “Firm Securities”. The stockholders listed in Schedule A hereto (“Selling Stockholders”) propose
severally to sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than [•] additional outstanding shares of Securities
(collectively, the “Optional Securities”), as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the “Offered Securities”.
2. Representations and Warranties of the Company and the Selling Stockholders. (a) The
Company represents and warrants to, and agrees with, the several Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-1 (No. 333-141740)
covering the registration of the Offered Securities under the Act (as defined herein),
including a related preliminary prospectus or prospectuses. At any particular time, this
initial registration statement, in the form then on file with the Commission (as defined
herein), including all information contained in the registration statement (if any)
pursuant to Rule 462(b) and then deemed to be a part of the initial registration statement,
and all 430A Information (as defined herein) and all 430C Information (as defined herein),
that in any case has not then been superseded or modified, shall be referred to as the
“Initial Registration Statement”. The Company may also have filed, or may file with the
Commission, a Rule 462(b) registration statement covering the registration of Offered
Securities. At any particular time, this Rule 462(b) registration statement, in the form
then on file with the Commission, including the contents of the Initial Registration
Statement incorporated by reference therein and including all 430A Information and all 430C
Information, that in any case has not then been superseded or modified, shall be referred
to as the “Additional Registration Statement”.
As of the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended. Any
Additional Registration Statement has or will become effective upon filing with the
Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration Statement.
For purposes of this Agreement:
“430A Information”, with respect to any registration statement, means information
included in a prospectus and retroactively deemed to be a part of such registration
statement pursuant to Rule 430A(b).
“430C Information”, with respect to any registration statement, means information
included in a prospectus then deemed to be a part of such registration statement pursuant
to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means :00 [a/p]m (Eastern time) on the date of this
Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” with respect to the Initial Registration Statement or, if filed prior
to the execution and delivery of this Agreement, the Additional Registration Statement
means the date and time as of which such Registration Statement was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c). If an
Additional Registration Statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised Credit Suisse Securities (USA) LLC, in its
capacity as the representative of the several Underwriters (the “Representative”), that it
proposes to file one, “Effective Time” with respect to such Additional Registration
Statement means the date and time as of which such Registration Statement is filed and
becomes effective pursuant to Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430A Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule C to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and the Additional Registration Statement are
referred to collectively as the “Registration Statements” and individually as a
“Registration Statement”. A “Registration Statement” with reference to a particular time
means the Initial Registration Statement and any Additional Registration Statement as of
such time. A “Registration Statement” without reference to a time means such Registration
Statement as of its Effective Time. For purposes of the foregoing definitions, 430A
Information with respect to a Registration Statement shall be considered to be included in
such Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
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“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of The New York Stock Exchange and The NASDAQ Global Market
(“Exchange Rules”).
“Statutory Prospectus” with reference to a particular time means the prospectus
included in a Registration Statement immediately prior to that time, including any 430A
Information or 430C Information with respect to such Registration Statement. For purposes
of the foregoing definition, 430A Information shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus is filed with the
Commission pursuant to Rule 424(b) or Rule 462(c) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
(ii) Compliance with Securities Act Requirements. (i) At their respective
Effective Times, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all material respects to the applicable requirements of the
Act and (ii) on its date, at the time of filing of the Final Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Time of the Additional
Registration Statement in which the Final Prospectus is included, and on each Closing Date,
the Final Prospectus will conform in all material respects to the applicable requirements
of the Act and the Rules and Regulations and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The preceding sentence does not apply to
statements in or omissions from any such document based upon written information furnished
to the Company by any Underwriter through the Representative specifically for use therein,
it being understood and agreed that the only such information is that described as such in
Section 8(c) hereof.
(iii) Ineligible Issuer Status. (i) At the time of the initial filing of the Initial
Registration Statement and (ii) at the date of this Agreement, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405, including (x) the Company or any of its
subsidiaries in the preceding three years not having been convicted of a felony or
misdemeanor or having been made the subject of a judicial or administrative decree or order
as described in Rule 405 and (y) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a
registration statement be the subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act in connection with the
offering of the Offered Securities, all as described in Rule 405.
(iv) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated ___, 2007 and the other information, if any, stated in
Schedule C to this Agreement to be included in the General Disclosure Package, all
considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted 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. The preceding sentence does
not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(c) hereof.
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(v) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Representative as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, (i)
the Company has promptly notified or will promptly notify the Representative and (ii) the
Company has promptly amended or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission. The first
sentence of this paragraph (v) does not apply to statements in or omissions from any Issuer
Free Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(c) hereof.
(vi) Good Standing of the Company. The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification.
(vii) Subsidiaries. Each subsidiary of the Company has been duly incorporated and is
existing and in good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct its business as described
in the General Disclosure Package; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, except where such failure to qualify as a foreign corporation would not have
a material adverse effect, and is not reasonably likely to result in a prospective material
adverse effect, individually or in the aggregate, on the condition (financial or
otherwise), results of operations, business or properties of the Company and its
subsidiaries taken as a whole (“Material Adverse Effect”); all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(viii) Offered Securities. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; the authorized equity
capitalization of the Company is as set forth in the General Disclosure Package; all
outstanding shares of capital stock of the Company are, and, when the Offered Securities
have been delivered and paid for in accordance with this Agreement on each Closing Date,
such Offered Securities will have been, validly issued, fully paid and nonassessable, will
conform in all material respects to the information in the General Disclosure Package and
to the description of such Offered Securities contained in the Final Prospectus; the
stockholders of the Company have no preemptive rights with respect to the Offered
Securities that have not been waived in connection with the offering of the Offered
Securities; and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder.
(ix) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give
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rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with this offering.
(x) Registration Rights. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act (collectively, “registration
rights”), and any person to whom the Company has granted registration rights has agreed not
to exercise such rights until after the expiration of the Lock-Up Period referred to in
Section 5(k) hereof.
(xi) Listing. The Offered Securities have been approved for listing on The NASDAQ
Global Market, subject to notice of issuance.
(xii) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any governmental agency or body or any court is
required to be obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of the Offered
Securities, except such as have been obtained or made and such as may be required under
state securities laws.
(xiii) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens, charges,
encumbrances and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them and, except as disclosed in the
General Disclosure Package, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no terms or provisions that would
materially interfere with the use made or to be made thereof by them.
(xiv) Absence of Defaults and Conflicts Resulting from the Transaction. The
execution, delivery and performance of this Agreement and the issuance and sale of the
Offered Securities will not result in a breach or violation of any of the terms and
provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined
below) under, or result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to: (A) the charter,
by-laws or other organizational documents of the Company or any of its subsidiaries, (B)
any statute, rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their properties, or (C) any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to
which any of the properties of the Company or any of its subsidiaries is subject, except
with respect to (B) and (C) above only for such breaches, violations, defaults, liens,
charges or encumbrances that would not, individually or in the aggregate, have a Material
Adverse Effect, materially and adversely affect the performance by the Company of its
obligations under this Agreement or the consummation of the transactions contemplated
hereby, or impair the validity or enforceability of this Agreement. A “Debt Repayment
Triggering Event” means any event or condition that gives, or with the giving of notice or
lapse of time would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(xv) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter, by-laws or other organizational
documents or in default (or with the giving of notice or lapse of time would be in default)
under any existing obligation, agreement, covenant or condition contained in any indenture,
loan agreement,
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mortgage, lease or other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the properties of any of them is subject,
except such violations or defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(xvi) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(xvii) Possession of Licenses and Permits. The Company and its subsidiaries possess,
and are in compliance with the terms of, all adequate certificates, authorizations,
franchises, licenses and permits (collectively, “Licenses”) necessary or material to the
conduct of the business now conducted and have not received any notice of proceedings
relating to the revocation or modification of any Licenses that, if determined adversely to
the Company or any of its subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect.
(xviii) Absence of Labor Dispute. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that
could, individually or in the aggregate, have a Material Adverse Effect.
(xix) Possession of Intellectual Property. The Company and its subsidiaries own,
possess or can acquire on reasonable terms sufficient trademarks, trade names, patent
rights, copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology, know-how and other intellectual property and similar rights, including
registrations and applications for registration thereof (collectively, “Intellectual
Property Rights”) necessary or material to the conduct of the business now conducted by
them or presently employed by them, as described in the General Disclosure Package, and the
expected expiration of any such Intellectual Property Rights would not, individually or in
the aggregate, have a Material Adverse Effect. Except as disclosed in the General
Disclosure Package (i) there are no rights of third parties to any of the Intellectual
Property Rights owned by the Company or its subsidiaries (other than Intellectual Property Rights
licensed or granted by the Company or its subsidiaries
in the ordinary course of their respective businesses), that would,
individually or in the aggregate, have a Material Adverse Effect; (ii) to the Company’s knowledge,
there is no material infringement, misappropriation, breach, default or other violation, or
the occurrence of any event that with notice or the passage of time would constitute any of
the foregoing, (a) by the Company or its subsidiaries of any of the Intellectual Property
Rights of others or (b) by third parties of any of the Intellectual Property Rights of the
Company or its subsidiaries; (iii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s or any
subsidiary’s rights in, to or under, or the violation of any of the terms of, any
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; and (iv) none of the Intellectual Property Rights used
by the Company or its subsidiaries in their businesses has been obtained or is being used
by the Company or its subsidiaries in violation of any contractual obligation binding on
the Company or any of its subsidiaries, except in each case covered by clauses (ii) – (iv)
such as would not, if determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, have a Material Adverse Effect.
(xx) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “environmental laws”), owns or operates any real
property contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which violation, contamination,
liability or claim would, individually or in the aggregate, have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead to such a claim.
(xxi) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “U.S. Federal Tax Consequences to Non-U.S. Holders”,
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“Description of Capital Stock”, “Risk Factors–The success of our business depends in
large part on our ability to protect and enforce our intellectual property rights”, “Risk
Factors–An assertion from a third party that we are infringing its intellectual property,
whether such assertions are valid or not, could subject us to costly and time-consuming
litigation or expensive licenses”, “Risk Factors–Concern over spyware and privacy,
including any violations of privacy laws or perceived misuse of personal information, could
cause public relations problems and could impair our ability to recruit panelists or
maintain a panel of sufficient size and scope, which in turn could adversely affect our
ability to provide our products”, “Risk Factors–Domestic or foreign laws, regulations or
enforcement actions may limit our ability to collect and use information about Internet
users or restrict or prohibit our product offerings, causing a decrease in the value of our
products and an adverse impact on the sales of our products”, “Risk Factors–Laws related to
the regulation of the Internet could adversely affect our business” and “Risk
Factors–Provisions in our certificate of incorporation and bylaws and under Delaware law
might discourage, delay or prevent a change of control of our company or changes in our
management and, therefore, depress the trading price of our common stock”, insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements, documents or proceedings
and present the information required to be shown.
(xxii) Absence of Manipulation. The Company has not taken, directly or indirectly,
any action that is designed to or that has constituted or that would reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(xxiii) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Registration Statement, a Statutory Prospectus or the
General Disclosure Package are based on or derived from sources that the Company believes
to be reliable and accurate.
(xxiv) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. From and after
the date of the initial filing of the Registration Statement and except as set forth in the
General Disclosure Package, the Company, its subsidiaries and the Company’s Board of
Directors (the “Board”) are in compliance in all material respects with the applicable
provisions of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the Exchange Rules. Except as disclosed in the General
Disclosure Package and the Final Prospectus, each of the Company and its subsidiaries
maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect thereto. Since the date of the latest audited financial
statements included in the Registration Statement, there has been no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(xxv) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including, to the Company’s knowledge, any inquiries
or investigations by any court or governmental agency or body, domestic or foreign) against
or affecting the Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or foreign) are
threatened or, to the Company’s knowledge, contemplated.
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(xxvi) Financial Statements. The financial statements included in each Registration
Statement and the General Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with accounting principles generally accepted in the United States
applied on a consistent basis; and the schedules included in each Registration Statement
present fairly the information required to be stated therein.
(xxvii) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business or properties of the Company and its
subsidiaries, taken as a whole, that is material and adverse, (ii) there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of
its capital stock and (iii) there has been no material adverse change in the capital stock,
short-term indebtedness, long-term indebtedness, net current assets or net assets of the
Company and its subsidiaries.
(xxviii) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally and not jointly represents and warrants to, and agrees
with, the several Underwriters that:
(i) Good Standing of Selling Stockholder. To the extent such Selling Stockholder is
an entity, such Selling Stockholder is validly existing and, to the extent such concept
exists in the relevant jurisdiction, in good standing under the laws of the jurisdiction of
its organization.
(ii) Title to Securities. Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement, the Custody Agreement (“Custody Agreement”) signed
by such Selling Stockholder and Computershare Shareholder Services, Inc., as Custodian
(“Custodian”), relating to the deposit of the Offered Securities to be sold by such Selling
Stockholder and the Power of Attorney (“Power of Attorney”) appointing certain individuals
as such Selling Stockholder’s attorneys-in-fact, and to sell, assign, transfer and deliver
the Offered Securities to be delivered by such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities on each Closing
Date hereunder the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such Closing Date.
(iii) Absence of Further Requirements. No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court is required to be obtained
or made by such Selling Stockholder for the execution, delivery and performance of this
Agreement, the Custody Agreement or the Power of Attorney by such Selling Stockholder and
the consummation of the transactions contemplated hereby and thereby, except such as have
been obtained and made and such as may be required under state securities laws.
(iv) Absence of Defaults and Conflicts Resulting from the Transaction. The
execution, delivery and performance of the Custody Agreement, the Power of Attorney and
this Agreement and the consummation of the transactions therein and herein contemplated
will not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the imposition of any lien, charge or encumbrance
upon any property or assets of such Selling Stockholder pursuant to: (A) any statute,
rule, regulation or order of any governmental agency or
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body or any court having jurisdiction over such Selling Stockholder or any of its
properties, (B) any 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 properties of such
Selling Stockholder is subject, or (C) the charter or by-laws of such Selling Stockholder
if such Selling Stockholder is a corporation or the constituent documents of such Selling
Stockholder if such Selling Stockholder is not a natural person or a corporation, except in
the case of clauses (A) and (B) for such breaches, violations, defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, reasonably be expected to
materially adversely affect such Selling Stockholder’s ability to perform its obligations
hereunder and under the Power of Attorney and related Custody Agreement or impair the
validity or enforceability hereof and thereof.
(v) Power of Attorney and Custody Agreement. The Power of Attorney and related
Custody Agreement with respect to such Selling Stockholder have been duly authorized,
executed and delivered by or on behalf of such Selling Stockholder and constitute valid and
legally binding obligations of such Selling Stockholder enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
(vi) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all material respects to the applicable requirements of the
Act and (ii) on its date, at the time of filing of the Final Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Time of the Additional
Registration Statement in which the Final Prospectus is included, and on each Closing Date,
the Final Prospectus will conform in all material respects to the applicable requirements
of the Act and the Rules and Regulations and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The preceding sentence (x) with respect to
any Selling Stockholder applies only to the extent that any statements in or omissions from
a Registration Statement or the Final Prospectus are based on written information
concerning such Selling Stockholder furnished to the Company by such Selling Stockholder
specifically for use therein (any written information concerning any Selling Stockholder
furnished to the Company by such Selling Stockholder specifically for such use being
referred to as the “Selling Stockholder Information”) and (y) does not apply to statements
in or omissions from any such document based upon written information furnished to the
Company by any Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that described as such in
Section 8(c) hereof.
(vii) General Disclosure Package. As of the Applicable Time, neither (i) the General
Disclosure Package nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included any untrue statement of a
material fact or omitted 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. The preceding sentence (x) with respect to any Selling Stockholder applies only
to the extent that any statements in or omissions from the General Disclosure Package or
any Limited Use Issuer Free Writing Prospectus are based on Selling Stockholder Information
and (y) does not apply to statements in or omissions from any such document based upon
written information furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(c) hereof.
(viii) Issuer Free Writing Prospectuses. All Selling Stockholder Information
contained in any Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities or
until any earlier date that such Selling Stockholder notified or notifies the Company and
the Representative as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or
9
will conflict with the information then contained in the Registration Statement. If
at any time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Selling Stockholder Information
conflicted or would conflict with the information then contained in the Registration
Statement or as a result of which such Selling Stockholder Information would include an
untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, such Selling Stockholder has promptly notified or
will promptly notify the Company and the Representative and will provide the Company with
all necessary information so as to correct such untrue statement or omission.
(ix) Disclosure of Selling Stockholder Agreements. There are no material agreements
or arrangements relating to the Company or its subsidiaries to which such Selling
Stockholder or, to such Selling Stockholder’s knowledge, any direct or indirect stockholder
of such Selling Stockholder is a party, which are required to be described in the
Registration Statements or the Final Prospectus or to be filed as exhibits thereto that are
not so described or filed.
(x) No Undisclosed Material Information. The sale of the Offered Securities by such
Selling Stockholder pursuant to this Agreement is not prompted by any material information
concerning the Company or any of its subsidiaries that is not set forth in the General
Disclosure Package.
(xi) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder.
(xii) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling Stockholder or any
Underwriter for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
(xiii) Absence of Manipulation. Such Selling Stockholder has not taken, directly or
indirectly, any action that is designed to or that has constituted or that would reasonably
be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of $[•] per share, that number of Firm Securities (rounded up or
down, as determined by the Representative in its discretion, in order to avoid fractions) obtained
by multiplying [•] Firm Securities by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule B hereto and the denominator of which is
the total number of Firm Securities.
10
The Company will deliver the Firm Securities to or as instructed by the
Representative for the accounts of the several Underwriters in a form reasonably acceptable to the
Representative against payment by the Underwriters of the purchase price in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of the Company at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, at 9:00
A.M., New York time, on [•], 2007, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being herein referred to as
the “First Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold pursuant to the
offering. The Firm Securities so to be delivered or evidence of their issuance will be made
available for checking at the office of Cravath, Swaine & ▇▇▇▇▇ LLP at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from the Representative given to the Company and the Selling
Stockholders from time to time not more than 30 days subsequent to the date of the Final
Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Selling Stockholders agree,
severally and not jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified in such notice by a
fraction, the numerator of which is the number of shares set forth opposite the names of such
Selling Stockholders in Schedule A hereto under the caption “Number of Optional Securities to be
Sold” and the denominator of which is the total number of Optional Securities (subject to
adjustment by the Representative to eliminate fractions). Such Optional Securities shall be
purchased from each Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter’s name bears to the total
number of Firm Securities (subject to adjustment by the Representative to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at any time upon
notice by the Representative to the Company and the Selling Stockholders.
Certificates in negotiable form for the Offered Securities to be sold by the Selling
Stockholders hereunder have been placed in custody, for delivery under this Agreement, under
Custody Agreements made with the Custodian. Each Selling Stockholder agrees that the shares
represented by the certificates held in custody for the Selling Stockholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the arrangements made
by the Selling Stockholders for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death of any individual Selling Stockholder or the occurrence of any other event, or
in the case of a trust, by the death of any trustee or trustees or the termination of such trust.
If any individual Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the delivery of the
Offered Securities hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event or termination.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Custodian will deliver the
Optional Securities being purchased on each Optional Closing Date to or as instructed by the
Representative for the accounts of the several Underwriters in a form reasonably acceptable to the
Representative, against payment by the Underwriters of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to
the Representative drawn to the order of [•], at the office of Cravath, Swaine & ▇▇▇▇▇ LLP. The
Optional Securities being purchased on each Optional Closing Date or evidence of their issuance
will be made available for checking at the office of Cravath, Swaine & ▇▇▇▇▇ LLP at a reasonable
time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The Company agrees with
the several Underwriters and the Selling Stockholders that:
11
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as part of the
Additional Registration Statement in accordance with the next sentence, the Company will
file the Final Prospectus, in a form approved by the Representative, with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representative, subparagraph (4)) of Rule 424(b) not later than the earlier of (A)
the second business day following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Time of the Initial Registration Statement; the
Company will advise the Representative promptly of any such filing pursuant to Rule 424(b)
and provide satisfactory evidence to the Representative of such timely filing. If an
Additional Registration Statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of the
execution and delivery of this Agreement, the Company will file the Additional Registration
Statement or, if filed, will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the Final Prospectus is
finalized and distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by the Representative.
(b) Filing of Amendments: Response to Commission Requests. The Company will promptly
advise the Representative of any proposal to amend or supplement at any time the Initial
Registration Statement, any Additional Registration Statement or any Statutory Prospectus
and will not effect such amendment or supplementation without the Representative’s consent;
and the Company will also advise the Representative promptly of (i) the effectiveness of
any Additional Registration Statement (if its Effective Time is subsequent to the execution
and delivery of this Agreement), (ii) any amendment or supplementation of a Registration
Statement or any Statutory Prospectus, (iii) any request by the Commission or its staff for
any amendment to any Registration Statement, for any supplement to any Statutory Prospectus
or for any additional information, (iv) the institution by the Commission of any stop order
proceedings in respect of a Registration Statement or the threatening of any proceeding for
that purpose and (v) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representative of such event and will promptly prepare and file with the Commission and
furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon
request of the Representative, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Representative’s consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective Time of the
Additional Registration Statement) which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act. For the purpose of the preceding sentence,
“Availability Date” means the day after the end of the fourth fiscal quarter following the
fiscal quarter that includes such Effective Time on which the Company is required to file
its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is
12
the last quarter of the Company’s fiscal year, “Availability Date” means the day after
the end of such fourth fiscal quarter on which the Company is required to file its Form
10-K.
(e) Furnishing of Prospectuses. The Company will furnish to the Representative
copies of each Registration Statement (two of which will be signed and will include all
exhibits), each related Statutory Prospectus, and, so long as a prospectus relating to the
Offered Securities is (or but for the exemption in Rule 172 would be) required to be
delivered under the Act, the Final Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representative reasonably requests. The
Final Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the execution and delivery of this Agreement. All other such
documents shall be so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representative
designates and will continue such qualifications in effect so long as required for the
distribution.
(g) Reporting Requirements. During the period of 5 years hereafter, the Company will
furnish to the Representative and, upon request, to each of the other Underwriters, as soon
as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the Representative (i) as soon
as available, a copy of each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Representative may reasonably
request. However, so long as the Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on its Electronic Data Gathering, Analysis and Retrieval system, it is not
required to furnish such reports or statements to the Underwriters.
(h) Payment of Expenses. The Company and each Selling Stockholder agree with the
several Underwriters that the Company will pay all expenses incident to the performance of
the obligations of the Company and the Selling Stockholders, as the case may be, under this
Agreement, including but not limited to any filing fees and other expenses (including fees
and disbursements of counsel to the Underwriters) incurred in connection with qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Representative designates and the preparation and printing of memoranda relating thereto,
costs and expenses related to the review by the National Association of Securities Dealers,
Inc. of the Offered Securities (including filing fees and the fees and expenses of counsel
for the Underwriters relating to such review), fees, disbursements and expenses of the
Company’s counsel and one counsel to the Selling Stockholders (which shall be [•]), costs
and expenses relating to investor presentations or any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s officers and employees and any other expenses of the Company
including the chartering of airplanes, fees and expenses incident to listing the Offered
Securities on The New York Stock Exchange, The American Stock Exchange, The NASDAQ Global
Market and other national and foreign exchanges, fees and expenses in connection with the
registration of the Offered Securities under the Exchange Act, any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the Underwriters and expenses
incurred in distributing preliminary prospectuses and the Final Prospectus (including any
amendments and supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or
prospective investors.
(i) Use of Proceeds. The Company will use the net proceeds received by it in
connection with this offering in the manner described in the “Use of Proceeds” section of
the General Disclosure Package and, except as disclosed in the General Disclosure Package,
the Company does not intend
13
to use any of the proceeds from the sale of the Offered Securities hereunder to repay
any outstanding debt owed to any affiliate of any Underwriter.
(j) Absence of Manipulation. The Company and the Selling Stockholders will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities by the Company. For the period specified below
(the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the
following actions with respect to its Securities or any securities convertible into or
exchangeable or exercisable for any of its Securities (“Lock-Up Securities”): (i) offer,
sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii)
offer, sell, issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other
agreement that transfers, in whole or in part, the economic consequences of ownership of
Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16
of the Exchange Act, (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities (other than any registration statements on Form S-8 relating
to securities that have been or may be issued pursuant to clause (B) below or amendments
thereto) or (vi) publicly disclose the intention to take any such action, without, in each
case, the prior written consent of the Representative, except (A) issuances of Lock-Up
Securities pursuant to the conversion of convertible securities or the exercise of warrants
or options, in each case outstanding on the date hereof, (B) grants of employee stock
options pursuant to the terms of a plan in effect on the date hereof or issuances of
Lock-Up Securities pursuant to the exercise of such options, (C) sales of up to [•] shares
of Securities at the permission of the Company by certain of the Company’s existing and
former employees as shall be designated by the Company or (D) issuances of Lock-Up
Securities pursuant to the Company’s dividend reinvestment plan. The foregoing
restrictions shall apply regardless of whether any such aforementioned transaction is to be
settled by delivery of the Lock-Up Securities or such other securities, in cash or
otherwise. The initial Lock-Up Period will commence on the date hereof and continue for
180 days after the date hereof or such earlier date that the Representative consents to in
writing; provided, however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period beginning
on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date of release of the
earnings results or the occurrence of the material news or material event, as applicable,
unless the Representative waives, in writing, such extension. The Company will provide the
Representative with notice of any announcement described in clause (2) of the preceding
sentence that gives rise to an extension of the Lock-Up Period.
(l) Restriction on Sale of Securities by the Selling Stockholders. Each Selling
Stockholder will not, directly or indirectly, take any of the following actions during the
Lock-Up Period with respect to the Lock-Up Securities: (i) offer, sell, contract to sell,
pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to
sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up
Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in
whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv)
establish or increase a put equivalent position or liquidate or decrease a call equivalent
position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act, (v)
make any demand for, or exercise any right with respect to, the registration of any Lock-Up
Securities or (vi) publicly disclose the intention to take any such action, without, in
each case, the prior written consent of the Representative. The foregoing restrictions
shall apply regardless of whether any such aforementioned transaction is to be settled by
delivery of the Lock-Up Securities or such other securities, in cash or otherwise. Nothing
contained herein shall limit or restrict the ability of each Selling Stockholder to
exercise any options or convert or exchange any security into
14
Lock-Up Securities. Any Lock-Up Securities acquired by each Selling Stockholder in
the open market will not be subject to these restrictions. A transfer of Lock-Up
Securities to a family member or a trust may be made, provided (i) the transferee agrees to
be bound in writing by the terms of this Agreement prior to such transfer, (ii) such
transfer shall not involve a disposition for value and (iii) no filing by any party (donor,
donee, transferor or transferee) under the Exchange Act shall be required or shall be
voluntarily made in connection with any such transfer (other than a filing on a Form 5 made
after the expiration of the Lock-Up Period). Notwithstanding anything herein to the
contrary, nothing herein shall prevent each Selling Stockholder from establishing a 10b5-1
trading plan that complies with Rule 10b5-1 under the Exchange Act, or from amending an
existing 10b5-1 trading plan in accordance with Rule 10b5-1 under the Exchange Act,
provided, in each case, that no sales or other dispositions of Lock-Up Securities under
such plans by or on behalf of any person that has signed or is otherwise bound by a lock-up
agreement (including each Selling Stockholder) will be permitted during the Lock-Up Period.
6. Free Writing Prospectuses. Each of the Company and the Selling Stockholders represents and
agrees that, unless it obtains the prior consent of the Representative (such consent not to be
unreasonably withheld), and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representative (such consents not to be unreasonably
withheld), it has not made and will not make any offer relating to the Offered Securities that
would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representative is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping. The Company represents that is has satisfied and agrees
that it will satisfy the applicable conditions in Rule 433 to avoid a requirement to file with the
Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders herein (as though made
on such Closing Date), to the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholders of their
obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representative shall have received letters, dated,
respectively, the date hereof and each Closing Date, of Ernst & Young LLP confirming that they are
a registered public accounting firm and independent public accountants within the meaning of the
Securities Laws and substantially in the form of Schedule D hereto (except that, in any letter
dated a Closing Date, the specified date referred to in Schedule D hereto shall be a date no more
than three days prior to such Closing Date).
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Final Prospectus is finalized and distributed to any
Underwriter, or shall have occurred at such later time as shall have been consented to by the
Representative. The Final Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) hereof. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of any Selling Stockholder, the
Company or the Representative, shall be contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event involving a prospective
change,
15
in the condition (financial or otherwise), results of operations, business or properties of
the Company and its subsidiaries taken as a whole which, in the judgment of the Representative, is
material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g)), or any public
announcement that any such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency exchange rates or exchange
controls the effect of which is such as to make it, in the judgment of the Representative,
impractical to market or to enforce contracts for the sale of the Offered Securities, whether in
the primary market or in respect of dealings in the secondary market; (iv) any suspension or
material limitation of trading in securities generally on The New York Stock Exchange or The NASDAQ
Global Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any
suspension of trading of any securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S. Federal or New York authorities; (vii) any
major disruption of settlements of securities, payment or clearance services in the United States
or any other country where such securities are listed; or (viii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any declaration of war
by Congress or any other national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency is such as to make it impractical or inadvisable to market the Offered Securities or to
enforce contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representative shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel for
the Company, including the opinions attached hereto as Schedule E in form and substance reasonably
satisfactory to the Representative.
(e) Opinion of Counsel for the Selling Stockholders. The Representative shall have received
an opinion, dated such Closing Date, of counsel for each Selling Stockholder reasonably acceptable
to the Representative, including the opinions attached hereto as Schedule F in form and substance
reasonably satisfactory to the Representative.
(f) Opinion of Counsel for the Underwriters. The Representative shall have received from
Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Representative may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(g) Officer’s Certificate. The Representative shall have received a certificate, dated such
Closing Date, of an executive officer of the Company and a principal financial or accounting
officer of the Company in which such officers shall state that: the representations and warranties
of the Company in this Agreement are true and correct; the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the best of their knowledge
and after reasonable investigation, are contemplated by the Commission; the Additional Registration
Statement (if any) satisfying the applicable requirements of subparagraphs (1) and (3) of Rule
462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date
of the most recent financial statements in the General Disclosure Package, there has been no
material adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business or properties of
the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure
Package or as described in such certificate.
(h) Lock-Up Agreements. On or prior to the date hereof, the Representative shall have
received lock-up letters from each of the stockholders of the Company.
16
(i) Form 1099. The Custodian will deliver to the Representative a letter stating that they
will deliver to each Selling Stockholder a United States Treasury Department Form 1099 (or other
applicable form or statement specified by the United States Treasury Department regulations in lieu
thereof) on or before January 31 of the year following the date of this Agreement.
The Selling Stockholders and the Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative reasonably requests.
The Representative may in its sole discretion waive on behalf of the Underwriters compliance with
any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company will indemnify and hold
harmless each Underwriter, its partners, members, directors, officers, employees, agents,
affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act (each an “Indemnified Party”), against any and all
losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may
become subject under the Act, the Exchange Act, other Federal or state statutory law or regulation
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any part of any Registration Statement at any time, any Statutory
Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out
of or are based upon the omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will reimburse each
Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending against any loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a
party thereto), whether threatened or commenced, and in connection with the enforcement of this
provision with respect to any of the above as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 8(c) below
hereof.
(b) Indemnification of the Underwriters by the Selling Stockholders. The Selling
Stockholders, severally but not jointly, will indemnify and hold harmless each Indemnified Party
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the
enforcement of this provision with respect to the above as such expenses are incurred; provided,
however, that the Selling Stockholders will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in Section
8(c) hereof; and provided further that the Selling Stockholders will only be liable in any such
case to the extent that such untrue statement or alleged untrue statement or omission or alleged
omission was
17
made in reliance upon and in conformity with the Selling Stockholder Information; and provided
further that the liability of each Selling Stockholder pursuant to this subsection (b) shall not
exceed the aggregate gross proceeds from the offering (before deducting underwriting discounts,
commissions and expenses) received by such Selling Stockholder.
(c) Indemnification of the Company and the Selling Stockholders. Each Underwriter will
severally and not jointly indemnify and hold harmless the Company, each of its directors and each
of its officers who signs a Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each
Selling Stockholder (each, an “Underwriter Indemnified Party”) against any losses, claims, damages
or liabilities to which such Underwriter Indemnified Party may become subject under the Act, the
Exchange Act, or other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in any
Registration Statement at any time, any Statutory Prospectus at any time, the Final Prospectus or
any Issuer Free Writing Prospectus or arise out of or are based upon the omission or the alleged
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating or
defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of the following information
under the caption “Underwriting” in the Final Prospectus furnished on behalf of each Underwriter:
(i) the concession figure appearing in the fourth paragraph thereunder and (ii) the information
related to stabilizing transactions, over-allotment transactions, syndicate covering transactions
and penalty bids contained in the 12th paragraph thereunder.
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or
(c) above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a),
(b) or (c) above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims,
18
damages or liabilities referred to in subsection (a), (b) or (c) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received by the Underwriters. The relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders or the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this subsection (e)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
8(e) were determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 8(e).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Company and the Selling Stockholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total number of shares of
Offered Securities that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative, the Company and the Selling Stockholders for the
purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Stockholders, except as provided in Section 10 (provided
that if such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Stockholders, of the
Company or its officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on
19
behalf of any Underwriter, any Selling Stockholder, the Company or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination of this Agreement
pursuant to Section 9 hereof, the Company and the Selling Stockholders will, jointly and severally,
reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and
the respective obligations of the Company, the Selling Stockholders and the Underwriters pursuant
to Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been
purchased hereunder, the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representative at
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: LCD-IBD, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇, or, if sent to a Selling Stockholder, will be
mailed, delivered or telegraphed and confirmed to it at the address set forth on Schedule A hereto;
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective personal representatives and successors and the officers and directors
and controlling persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
13. Representation. The Representative will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
the Representative will be binding upon all the Underwriters.
[•] will act for the Selling
Stockholders in connection with such transactions, and any action under or in respect of this
Agreement taken by [•] will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders acknowledge
and agree that:
(a) No Other Relationship. The Representative has been retained solely to act as an
underwriter in connection with the sale of the Offered Securities and that no fiduciary, advisory
or agency relationship between the Company or the Selling Stockholders, on the one hand, and the
Representative, on the other, has been created in respect of any of the transactions contemplated
by this Agreement or the Final Prospectus, irrespective of whether the Representative has advised
or is advising the Company or the Selling Stockholders on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company and the Selling Stockholders following discussions and
arms-length negotiations with the Representative, and the Company and the Selling Stockholders are
capable of evaluating and understanding and understand and accept the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Selling Stockholders have been
advised that the Representative and its affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling Stockholders and
that the Representative has no obligation to disclose such interests and transactions to the
Company or the Selling Stockholders by virtue of any fiduciary, advisory or agency relationship;
and
20
(d) Waiver. The Company and the Selling Stockholders waive, to the fullest extent permitted
by law, any claims they may have against the Representative for breach of fiduciary duty or alleged
breach of fiduciary duty and agree that the Representative shall have no liability (whether direct
or indirect) to the Company or the Selling Stockholders in respect of such a fiduciary duty claim
or to any person asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and the Selling Stockholders hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company and the Selling Stockholders irrevocably and unconditionally waive any objection to the
laying of venue of any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in the
City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit or proceeding in any such court has been brought in an inconvenient
forum.
21
If the foregoing is in accordance with the Representative‘s understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Selling Stockholders, the Company and the several Underwriters in
accordance with its terms.
| Very truly yours, | ||||||||||||
| COMSCORE, INC. | ||||||||||||
| By | ||||||||||||
| [Insert title] | ||||||||||||
| [Insert names of Selling Stockholders] | ||||||||||||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||||||||||
| Credit Suisse Securities (USA) LLC | ||||||||||||
| By: | ||||||||||||
| Name: | ||||||||||||
| Title: | ||||||||||||
Acting on behalf of itself and as the Representative of the several Underwriters. |
||||||||||||
22
SCHEDULE A
| Number of | ||||||||
| Name and | Number of | Optional | ||||||
| Address of | Firm Securities | Securities to | ||||||
| Selling Stockholder | to be Sold | be Sold | ||||||
Total |
||||||||
SCHEDULE B
| Number of | ||||||||
| Firm Securities | ||||||||
| Underwriter | to be Purchased | |||||||
Credit Suisse Securities (USA) LLC |
||||||||
Deutsche
Bank Securities Inc. |
||||||||
Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc. |
||||||||
▇▇▇▇▇▇▇▇▇
& Company, Inc. |
||||||||
▇▇▇▇▇▇▇
▇▇▇▇▇ & Company, L.L.C. |
||||||||
Total |
||||||||
SCHEDULE C
| 1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) |
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
| 2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
SCHEDULE D
SCHEDULE E
Form of Opinion to be Provided by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
SCHEDULE F
Form of Opinion to be Provided by Counsel for Selling Stockholders