3,000,000 Shares SYNTEL, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
3,000,000 Shares
SYNTEL, INC.
Common Stock
January [l], 2007
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.,
Deutsche Bank Securities Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ (“Selling Stockholder”)
agrees with the several Underwriters named on Schedule A hereto (“Underwriters”) to sell
to the several Underwriters 3,000,000 outstanding shares (“Firm Securities”) of the
Common Stock, no par value (“Securities”), of Syntel, Inc., a Michigan corporation (“Company”), and
also proposes to sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 450,000 additional outstanding shares (“Optional Securities”) of the Company’s Securities
as set forth below. The Firm Securities and the Optional Securities are herein collectively called
the “Offered Securities”. The Selling Stockholder and the Company hereby agree with the several
Underwriters as follows:
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 [l]:00 [a/p]m (Eastern time) on the date of this
Agreement.
“Closing Date” has the meaning defined in Section 4 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Date” with respect to the Initial Registration Statement or the Additional
Registration Statement (if any) means the date of the Effective Time thereof.
“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 the Representatives 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 B 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.
“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 Stock 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 document
incorporated by reference therein and 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.
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2. Representations and Warranties of the Company and the Selling Stockholder.
(a) Representations and Warranties of the Company. 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-3 (No. 333-139227)
covering the registration of the Offered Securities under the Act, including a related
preliminary prospectus. At any particular time, this initial registration statement, in
the form then on file with the Commission, including all material then incorporated by
reference therein, 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 and all 430C Information, 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.
(ii) Compliance with Securities Act Requirements. (A)(1) On their respective
Effective Dates, (2) on the date of this Agreement and (3) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all respects to the requirements of the Act and the Rules and
Regulations and did not 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 and (B) 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 Date
of the Additional Registration Statement in which the Final Prospectus is included, and on
each Closing Date, the Final Prospectus will conform in all respects to the 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 documents based upon written information furnished
to the Company by any Underwriter through the Representatives 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. (A) At the time of initial filing of the Initial
Registration Statement and (B) at the date of this Agreement, the Company was not and is
not an “ineligible issuer”, as defined in Rule 405, including (1) the Company or any other
subsidiary 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 (2) 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 (A) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated January 3, 2007 (which is the most recent Statutory
Prospectus distributed to
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investors generally) and the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (B) 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 Representatives 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.
(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 Representatives 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, if republished immediately following such event or
development, 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, (A) the Company has promptly
notified or will promptly notify the Representatives and (B) 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.
(vi) Good standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Michigan, with power and
authority (corporate and other) 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, other than
where the failure to be so qualified or in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or otherwise),
results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”).
(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
power and authority (corporate and other) 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, other than where the failure to be so qualified or in good
standing would not, individually or in the aggregate, have a Material Adverse Effect. All
of the issued and outstanding capital stock of each 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 and validly issued and are fully
paid and nonassessable; the authorized equity capitalization of the Company is as set forth
in the General Disclosure Package; the Offered Securities conform 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 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.
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(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 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 hereof.
(xi) Listing. The Offered Securities are listed on the NASDAQ Stock Market’s Global
Select Market.
(xii) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except such as have been
obtained or made and such as may be required under applicable 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
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 Transaction. The execution,
delivery and performance of this Agreement and the consummation of the transactions herein
contemplated 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, the charter or by-laws of the
Company or any of its subsidiaries, 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 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. 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 (A) is in violation of its respective charter or by-laws or (B) 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,
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 defaults that would
not, individually or in the aggregate, result in a Material Adverse Effect.
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(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 certificates, authorizations, franchises,
licenses and permits (“Licenses”) necessary or material to the conduct of the business now
conducted or proposed in the General Disclosure Package to be conducted by them 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, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or its subsidiaries’ principal suppliers, contractors or customers, that, in any
such case, could have a Material Adverse Effect.
(xix) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries is in violation of any statute, any 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.
(xx) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Description of Capital Stock”, “Material United States
Federal Tax Consequences For Non-United States Shareholders” and “Management’s Discussion
and Analysis of Financial Condition and Results of Operations-Income Tax Matters”, 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.
(xxi) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference 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.
(xxii) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. 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
▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all applicable Exchange Rules. The Company maintains a system of
internal controls, including, but not limited to, disclosure controls and procedures,
internal controls over accounting matters and financial reporting, an internal audit
function and legal and regulatory compliance controls (collectively, “Internal Controls”)
that comply in all material respects with the Securities Laws and are sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s
general or specific authorizations, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. Generally Accepted Accounting
Principles and to maintain accountability for assets, (C) access to assets is permitted
only in accordance with management’s general or specific authorization, (D) the
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recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences and (E) the
Company has adopted and applies corporate governance guidelines. The Internal Controls are
overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with the
Exchange Rules. The Company has not publicly disclosed or reported to the Audit Committee
or the Board, and within the next 90 days the Company does not reasonably expect to
publicly disclose or report to the Audit Committee or the Board, a significant deficiency,
material weakness, change in Internal Controls or fraud involving management or other
employees who have a significant role in Internal Controls (each, an “Internal Control
Event”), any violation of, or failure to comply with, the Securities Laws, or any matter
which, if determined adversely, would have a Material Adverse Effect.
(xxiii) Absence of Accounting Issues. Except as set forth in the General Disclosure
Package, none of the Chief Executive Officer, Chief Financial Officer or General Counsel of
the Company has been informed by any member of the Audit Committee that the Audit Committee
is reviewing or investigating, and neither the Company’s independent auditors nor its
internal auditors have recommended that the Audit Committee review or investigate, (A)
adding to, deleting or changing the application of, or changing the Company’s disclosure
with respect to, any of the Company’s material accounting policies; (B) any matter which
could result in a restatement of the Company’s financial statements for any annual or
interim period during the current or prior three fiscal years; or (C) any Internal Control
Event.
(xxiv) Litigation. Except as disclosed in the General Disclosure Package, there are
no pending actions, suits or proceedings (including 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 would 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, to the Company’s knowledge, threatened or contemplated.
(xxv) 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 the generally accepted accounting principles in the United
States applied on a consistent basis.
(xxvi) 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 (A) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole, that is material and adverse, (B) except as disclosed in or
contemplated by the General Disclosure Package, 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 (C)
except as disclosed in or contemplated by the General Disclosure Package, there has been no
material adverse change in the capital stock, current liabilities, long-term liabilities,
current assets or total assets of the Company and its subsidiaries.
(xxvii) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an “investment company” as defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xxviii) Ratings. No “nationally recognized statistical rating organization”, as
such term is defined for purposes of Rule 436(g)(2), (A) has imposed (or has informed the
Company that it is
7
considering imposing) any condition (financial or otherwise) on the Company’s
retaining any rating assigned to the Company or any securities of the Company or (B) has
indicated to the Company that it is considering any of the actions described in Section
7(d)(ii) hereof.
(xxix) Intellectual Property Rights. 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 or proposed in the
General Disclosure Package to be conducted by them, 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 (A) there are no
rights of third parties to any of the Intellectual Property Rights owned by the Company or
its subsidiaries; (B) 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, by the Company, its subsidiaries or third parties of
any of the Intellectual Property Rights of the Company or its subsidiaries; (C) there is no
pending or threatened action, suit, proceeding or claim by others challenging the Company’s
or any subsidiary’s rights in or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (D) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity, enforceability or scope of any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (E) there is no pending or threatened action, suit,
proceeding or claim by others that the Company or any subsidiary infringes, misappropriates
or otherwise violates or conflicts with any Intellectual Property Rights or other
proprietary rights of others and the Company is unaware of any other fact which would form
a reasonable basis for any such claim; and (F) 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 or in violation of the rights of any persons,
except in each case covered by clauses (A) — (F) 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.
(xxx) Anti-Bribery Laws, Anti-Money Laundering Laws, and Economic Sanctions. To the
knowledge of the Company’s executive officers, none of the Company or its subsidiaries,
affiliates or any of their respective officers, directors, supervisors, managers, agents or
employees have violated, and participation in the offering will not violate, any of the
following laws (the “Ethical Laws”): (A) anti-bribery laws, including but not limited to
any applicable law, rule or regulation of any locality, including but not limited to any
law, rule or regulation promulgated to implement the OECD Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, signed December 17,
1997, including the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or
regulation of similar purpose and scope; (B) anti-money laundering laws, including but not
limited to applicable federal, state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including, without limitation,
sections 1956 and 1957 of Title 18 of the U.S. Code, the Patriot Act, the Bank Secrecy Act
and international anti-money laundering principles or procedures by an intergovernmental
group or organization, such as the Financial Action Task Force on Money Laundering, of
which the United States is a member and with which designation the United States
representative to the group or organization continues to concur, all as amended, and any
executive order, directive or regulation pursuant to the authority of any of the foregoing,
or any orders or licenses issued thereunder; or (C) laws and regulations imposing U.S.
economic sanctions measures, including, but not limited to, the International Emergency
Economic Powers Act, the Trading with the Enemy Act, the United Nations Participation Act
and the Syria Accountability and Lebanese Sovereignty Act, all as amended, and any
executive order, directive or regulation pursuant to the authority of any of the foregoing,
including the regulations of the United States Treasury Department set forth under 31 CFR,
Subtitle B, Chapter V, as amended, or any orders or licenses
8
issued thereunder, where such violations could, individually or in the aggregate, have
a Material Adverse Effect. The Company and its subsidiaries have instituted and maintain
policies and procedures designed to ensure continued compliance with the Ethical Laws in
all material respects.
(xxxi) Tax Matters. The Company and its subsidiaries have filed all federal, state,
local and Indian and other non-U.S. tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect); and, except as set forth in the General Disclosure
Package, the Company and its subsidiaries have paid all taxes (including any assessments,
fines or penalties) required to be paid by them, except for any such taxes, assessments,
fines or penalties currently being contested in good faith or as would not, individually or
in the aggregate, have a Material Adverse Effect.
(b) Representations
and Warranties of the Selling Stockholder. The Selling Stockholder
represents and warrants to, and agrees with, the several Underwriters that:
(i)
Power and Authority. The Selling Stockholder has, and on each Closing Date
will have, full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be sold by the Selling Stockholder in the manner provided herein.
(ii) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Stockholder.
(iii) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance by the Selling Stockholder of this Agreement, and the 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 under (A) any statute, rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Selling
Stockholder or any of his properties or (B) any agreement or
instrument to which the
Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of his properties is subject.
(iv)
Valid and Unencumbered Title. The Selling Stockholder has and on each Closing
Date hereinafter mentioned will have valid and unencumbered title to the Securities to be
delivered by the Selling Stockholder on such Closing Date; and upon the delivery of and
payment for the Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Securities to be delivered by the Selling
Stockholder on such Closing Date and no action based on an adverse claim may be asserted
against the Underwriters with respect to such Securities.
(v) Absence of Further Requirements. No consent, approval, authorization or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities by the Selling
Stockholder, except such as have been obtained or made and such as may be required under
applicable state securities laws.
(vi) Compliance with Securities Act Requirements. (A)(1) On their respective
Effective Dates, (2) on the date of this Agreement and (3) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all respects to the requirements of the Act and the Rules and
Regulations and did not and will not include any untrue statement of a material fact or
omit to state any material fact required to be
9
stated therein or necessary to make the statements therein not misleading and (B) 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 Date of the Additional Registration Statement in
which the Final Prospectus is included, and on each Closing Date, the Final Prospectus will
conform in all respects to the 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 documents
based upon written information furnished to the Company by any Underwriter through the
Representatives 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 (A) the
General Disclosure Package nor (B) 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 Representatives 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.
(viii)
No Distribution of Offering Material. The Selling Stockholder has not
distributed and will not distribute any prospectus or other offering material in connection
with the offering and sale of the Offered Securities.
(ix)
No Reliance on Other Information. The sale of the Offered
Securities by the
Selling Stockholder is not prompted by any information concerning the Company or any of its
subsidiaries that has come to the attention of the Selling Stockholder and is not set
forth in the General Disclosure Package, the Final Prospectus or any supplement thereto.
(x) Material Agreements. There are no material agreements or arrangements relating
to the Company or its subsidiaries to which the 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.
(xi) No Finder’s Fee. Except as disclosed in the General Disclosure Package and the
Final Prospectus, there are no contracts, agreements or
understandings between the Selling
Stockholder and any person that would give 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 the sale 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 Selling
Stockholder agrees to sell to the several Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling Stockholder, at a
purchase price of $[l] per share, that number of Firm Securities (rounded up or down, as
determined by the Representatives in their discretion, in order to avoid fractions) obtained by
multiplying the total number of 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 A hereto and the denominator of which is
the total number of Firm Securities.
The Selling Stockholder will deliver the Firm Securities to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price by the Underwriters in Federal (same day)
funds by official bank check or
10
checks or wire transfer to an account at a bank acceptable to the Representatives drawn to the
order of the Selling Stockholder at the New York office of Cravath, Swaine & ▇▇▇▇▇ LLP, at 9:00
A.M., New York time, on January [l], 2007, or at such other time not later than seven full
business days thereafter as the Representatives and the Selling Stockholder determine, such time
being herein referred to as the “First Closing Date”. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, 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 above office of Cravath,
Swaine & ▇▇▇▇▇ LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company and the Selling
Stockholder 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 Stockholder agrees to sell to the Underwriters the number of Optional Securities specified in such notice and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased from
the Selling Stockholder for the account of each Underwriter in the same proportion as the number
of shares of Firm Securities set forth opposite such Underwriter’s name bears to the total number
of shares of Firm Securities (subject to adjustment by the Representatives 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 Representatives to the Selling Stockholder.
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 Representatives but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Selling Stockholder will deliver
the Optional Securities being purchased on each Optional Closing Date to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment 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
Representatives drawn to the order of the Selling Stockholder, at the above 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 above 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 Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder.
(a) Certain Agreements of the Company. The Company agrees with the several Underwriters and
the Selling Stockholder that:
(i) 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 Representatives, with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, 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
11
Effective Date of the Initial Registration Statement. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b) and provide
satisfactory evidence to the Representatives 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 Representatives.
(ii) Filing of Amendments; Response to Commission Requests. The Company will
promptly advise the Representatives 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
Representatives’ consent; and the Company will also advise the Representatives promptly of
(A) the effectiveness of any Additional Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement), (B) any amendment or
supplementation of a Registration Statement or any Statutory Prospectus, (C) 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, (D) 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 (E) 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.
(iii) 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 Representatives 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 Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ 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.
(iv) Rule 158. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its securityholders 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 Date 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 Date on which the Company is required to file
its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is 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.
(v) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of each Registration Statement (three 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
12
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 Representatives request. 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 documents shall be so furnished as soon as available.
(vi) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required for the
distribution.
(vii) Absence of Manipulation. The Company 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.
(viii) Restriction on Sale of Securities. 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”): (A) offer, sell, issue,
contract to sell, pledge or otherwise dispose of Lock-Up Securities, (B) offer, sell,
issue, contract to sell, contract to purchase or grant any option, right or warrant to
purchase Lock-Up Securities, (C) 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, (D) 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 or (E) file with the Commission a registration statement under the Act
relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
without the prior written consent of the Representatives, except issuances of Lock-Up
Securities pursuant to the conversion or exchange of convertible or exchangeable securities
or the exercise of warrants or options, in each case outstanding on the date hereof, grants
of employee stock options pursuant to the terms of a plan in effect on the date hereof,
issuances of Lock-Up Securities pursuant to the exercise of such options or issuances of
Lock-Up Securities pursuant to the Company’s dividend reinvestment plan. The initial
Lock-Up Period will commence on the date hereof and continue for 90 days after the date of
the commencement of the public offering of the Offered Securities or such earlier date that
the Representatives consent 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 Representatives waive, in writing, such
extension. The Company will provide the Representatives with notice of any announcement
described in clause (2) of the preceding sentence that gives rise to an extension of the
Lock-Up Period.
(b) Certain
Agreements of the Selling Stockholder. The Selling Stockholder agrees with the
several Underwriters and the Company that:
(i)
Payment of Expenses. The Selling Stockholder will pay the following expenses incident to the
performance of the obligations of the Selling Stockholder and the obligations of the Company under
this Agreement: (A) the fees, disbursements and expenses of counsel to the Company and counsel to
the Selling Stockholder, and the fees of the Company’s accountants, in connection with the
registration of the Securities under the Act, (B) any filing fees and other expenses incurred in
connection with qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives designate and the preparation and printing of memoranda
relating thereto, (C) the costs of printing or producing this Agreement, any Blue Sky memorandum or
survey, closing documents and any other documents in connection with the Offering, (D) the costs
and expenses related to the review by the National Association of Securities Dealers, Inc. of the
Offered Securities (including filing fees relating to such review), (E) travel and other expenses
of the Company’s officers and employees and the Selling Stockholder relating to investor
presentations or any “road show” in connection with the offering and sale of the Offered
Securities, including 50% of the cost of any chartering of airplanes, (F) any fees and expenses
incident to listing the Offered Securities on the New York Stock Exchange, American Stock Exchange,
NASDAQ Stock Market and other national and foreign exchanges, (G) any fees and expenses in
connection with the registration of the Offered Securities under the Exchange Act, (H) any transfer
taxes on the sale of the Offered Securities to the Underwriters, (I) any fees and expenses of any
attorneys-in-fact, any custodian and the transfer agent with respect to the sale of the Offered
Securities and (J) expenses incurred in printing and distributing preliminary prospectuses and the
Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for
preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or
prospective investors. It is understood that except as provided in this Section, the Underwriters
will pay all of their own costs and expenses, including fees of their counsel, stock transfer taxes
on resale of any Securities by them, any advertising expense connected with any offers they may
make and costs and expenses relating to investor presentations or any “road show” in connection
with the offering and sale of the Offered Securities not specified in clause (E) above, including,
without limitation, travel and other expenses of the Underwriters’ employees and 50% of the cost of
any chartering of airplanes.
13
(ii)
Restriction on Sale of Securities. The Selling Stockholder agrees during the
Lock-Up Period (as defined in Section 5(a)(viii) hereof, and including any extension
thereof) that the Selling Stockholder will not, directly or indirectly, take any of the
following actions with respect to the Selling Stockholder’s Lock-Up Securities: (A) offer,
sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (B)
offer, sell, issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (C) 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, or (D) 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, or publicly disclose the intention to take any such action, without
the prior written consent of the Representatives.
This paragraph (ii) shall not apply to (A) the conversion or exchange of convertible
or exercisable securities or the exercise of warrants or options, provided that any Lock-Up
Securities received upon the exercise of options or upon conversion or exchange of any
other security shall be subject to this paragraph (ii), (B) any Lock-Up Securities acquired
by the Selling Stockholder in the open market or (C) a transfer
by the Selling
Stockholder to a family member or trust, provided that the transferee agrees to be bound in
writing by the terms of this paragraph (ii) prior to such transfer and 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 such transfer (other than a filing on a Form 5
made after the expiration of the Lock-Up Period).
(iii) 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 General Disclosure Package or 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, the Selling Stockholder will immediately
notify the Company and the Representatives of such change.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter and the Selling Stockholder represents and
agrees that, unless it obtains the prior consent of the Company and the Representatives, 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 Representatives 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
14
“issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements or Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
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 Stockholder 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 Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters, dated,
respectively, the date hereof and each Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLC 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 C hereto (except that, in
any letter dated a Closing Date, the specified date referred to in
Schedule C hereto shall be a
date no more than three business days prior to such Closing Date).
(b) Previous Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and each Closing Date, of Ernst & Young LLP confirming that,
during the period of their engagement by the Company, they were 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 business days prior to such Closing
Date).
(c) 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
Representatives. The Final Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a)(i) 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
the Selling Stockholder, the
Company or the Representatives, shall be contemplated by the Commission.
(d) 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, in the condition (financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the
Representatives, 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 either U.S. or Indian 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 Representatives, 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 Stock Market’s Global Select Market, or any setting of minimum or maximum
prices for trading on either 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, New York or Indian 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 or India, any declaration of war by Congress or any other
national or international calamity or emergency if, in the
15
judgment of the Representatives, 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.
(e) Opinion of General Counsel of the Company. The Representatives shall have received an
opinion, dated such Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Administrative Officer, General Counsel
and Secretary of the Company, to the effect that:
(i) Good standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Michigan, 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, other than where the
failure to be so qualified or in good standing would not, individually or in the aggregate,
have a Material Adverse Effect;
(ii) Domestic Subsidiaries. Each domestic 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 power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure Package; and each domestic
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, other than where the failure to be so
qualified or in good standing would not, individually or in the aggregate, have a Material
Adverse Effect. All of the issued and outstanding capital stock of each 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;
(iii) Registration Rights. To the knowledge of such counsel, there are no contracts,
agreements or understandings between the Company and any person granting such person
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 hereof;
(iv) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement and the consummation of the transactions
contemplated herein 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 the Company or any of its subsidiaries
pursuant to, the charter or by-laws of the Company or of any of its subsidiaries, any
statute, rule, regulation or order of any governmental agency or body or any court having
jurisdiction over the Company or any of its subsidiaries or any of their properties, or 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;
(v) 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.
(vi) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
domestic subsidiaries is in violation of its charter or by-laws and, to such counsel’s
knowledge, no default (or event which, with the giving of notice or lapse of time would be
default) has occurred in the
16
due performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in a Registration Statement
or the General Disclosure Package or filed or incorporated by reference as an exhibit to a
Registration Statement; and
(vii) Disclosure. Each Registration Statement and the Final Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Act and the Rules and
Regulations, and such counsel has no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus or any amendment or supplement thereto, as of its issue date or
as of such Closing Date, contained 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. Such counsel also has no
reason to believe that the General Disclosure Package, as of the Applicable Time or as of
such Closing Date, contained 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.
(f) Opinion of Indian Counsel for Company. The Representatives shall have received an
opinion, dated such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Indian counsel for the Company, to the effect
that:
(i) Indian Subsidiaries. Each Indian 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 power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure Package; and each Indian
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, other than where the failure to be so
qualified or in good standing would not, individually or in the aggregate, have a Material
Adverse Effect; and
(ii) Absence of Existing Defaults and Conflicts. None of the Indian subsidiaries of
the Company is in violation of its charter or by-laws and, to the best of such counsel’s
knowledge, no default (or event which, with the giving of notice or lapse of time would be
default) has occurred in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument of any Indian subsidiary of the
Company that is described or referred to in a Registration Statement or the General
Disclosure Package or filed or incorporated by reference as an exhibit to a Registration
Statement.
(g) Opinion of Special Counsel for the Company and the Selling Stockholder. The
Representatives shall have received an opinion, dated such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC,
special counsel for the Company and the Selling Stockholder, to the effect that:
(i) Good standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Michigan, with corporate power
and authority to own its properties and conduct its business as described in the General
Disclosure Package; and, to such counsel’s knowledge after due inquiry, 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, other than where the failure to be so qualified or in good
standing would not, individually or in the aggregate, have a Material Adverse Effect;
(ii) Domestic Subsidiaries. Each domestic 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 power and authority (corporate and other) to own its properties and
conduct its
17
business as described in the General Disclosure Package; and, to such counsel’s
knowledge after due inquiry, each domestic 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, other than where the failure to be so qualified or in good standing would
not, individually or in the aggregate, have a Material Adverse Effect. All of the issued
and outstanding capital stock of each subsidiary of the Company has been duly authorized
and validly issued and is, to such counsel’s knowledge after due inquiry, 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;
(iii) Offered Securities; Capitalization. The Offered Securities delivered on such
Closing Date and all other outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable, and such Securities
conform to the information in the General Disclosure Package and to the description of such
Offered Securities contained in the Final Prospectus. The authorized equity capitalization
of the Company is as set forth in the General Disclosure Package. The stockholders of the
Company have no preemptive rights with respect to the 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;
(iv)
Valid and Unencumbered Title. The Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by the Selling Stockholder on such
Closing Date and had full right, power and authority to sell, assign, transfer and deliver
the Offered Securities delivered by the Selling Stockholder on such Closing Date
hereunder; and the several Underwriters have acquired valid and unencumbered title to the
Offered Securities purchased by them on such Closing Date hereunder and no action based on
an adverse claim may be asserted against the Underwriters with respect to the Offered
Securities;
(v) Registration Rights. To the knowledge of such counsel, there are no contracts,
agreements or understandings between the Company and any person granting such person
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 hereof;
(vi) Absence of Further Requirements. No consent, approval, authorization or order
of, or filing with, any person (including any governmental agency or body or any court) is
required for the consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such as have been obtained or
made and such as may be required under applicable state securities laws;
(vii) Absence of Company Defaults and Conflicts Resulting from Transaction. The
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein 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 the Company or any of its
subsidiaries pursuant to, the charter or by-laws of the Company or of any of its
subsidiaries, any statute, rule, regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any of its subsidiaries or any of their
properties, or 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;
(viii) Absence of Selling Stockholder Defaults and Conflicts Resulting from
Transaction. The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body or any court
having jurisdiction over the Selling Stockholder or any of his properties or any
agreement or instrument to which the Selling Stockholder is a party
or by which the Selling
Stockholder is bound or to which any of the properties of the Selling Stockholder is
subject;
18
(ix) Compliance with Registration Requirements; Effectiveness. The Initial
Registration Statement was declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration Statement (if any) was filed and
became effective under the Act as of the date and time (if determinable) specified in such
opinion, the Final Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion (or, if stated in such opinion, pursuant to Rule
462(c)) on the date specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act; the statements in the Registration Statements, General
Disclosure Package and Final Prospectus of legal matters, agreements, documents or
proceedings are accurate and fair summaries thereof and present the information required to
be shown; and such counsel does not know of any legal or governmental proceedings required
to be described in a Registration Statement or the Final Prospectus which are not described
as required or of any contracts or documents of a character required to be described in a
Registration Statement or the Final Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required;
(x) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and the Selling Stockholder;
(xi) Title to Property. Except as disclosed in the General Disclosure Package, to
such counsel’s knowledge, 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.
(xii) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
domestic subsidiaries is in violation of its charter or by-laws and, to such counsel’s
knowledge, no default (or event which, with the giving of notice or lapse of time would be
default) has occurred in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described or referred to in
a Registration Statement or the General Disclosure Package or filed or incorporated by
reference as an exhibit to a Registration Statement; and
(xiii) Disclosure. Each Registration Statement and the Final Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Act and the Rules and
Regulations, and such counsel has no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus or any amendment or supplement thereto, as of its issue date or
as of such Closing Date, contained 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. Such counsel also has no
reason to believe that the General Disclosure Package, as of the Applicable Time or as of
such Closing Date, contained 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.
(h) Opinion of Counsel for Underwriters. The Representatives shall have received from
Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect such matters as the Representatives may require, and the Selling
Stockholder 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.
19
(i) Officers’ Certificate. The Representatives shall have received a certificate, dated such
Closing Date, of the President and the 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 requirements of subparagraphs (1) and (3) or 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), business, properties or prospects 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.
(j) Financial Officer’s Certificate. The Representatives shall have received a certificate,
dated such Closing Date, of the principal financial or accounting officer of the Company regarding
PricewaterhouseCoopers LLP and the financial information included or incorporated by reference in
the Registration Statements and the General Disclosure Package for periods during which
PricewaterhouseCoopers LLP was the Company’s accountants, in form and substance reasonably
satisfactory to the Representatives.
(k) Tax
Information. To avoid a 28% backup withholding tax the Selling Stockholder agrees
to deliver to the Representatives prior to closing a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(l) Lock-up Agreements. On or prior to the date hereof, the Representatives shall have
received lockup letters from each of the executive officers, directors and stockholders of the
Company listed on Schedule E hereto.
The Selling Stockholder and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their 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 and
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
20
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 Representatives 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 subsection (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholder. The Selling
Stockholder 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 any of the above as such expenses are incurred;
provided, however, that the Selling Stockholder 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 an Underwriter
through the Representatives 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
subsection (c) below; provided further, however,
that the aggregate liability of the Selling
Stockholder pursuant to this subsection (b) and subsection (e) below shall not exceed the product
of (i) the number of Securities sold by the Selling Stockholder pursuant to this Agreement,
including any Optional Securities, and (b) the public offering price per Security, as set forth on
the cover page of the Final Prospectus.
(c) Indemnification of the Company and the Selling Stockholder by the Underwriters. 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 the 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, 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
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 Representatives 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 on any such untrue statement or omission, or 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 in the Final
Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the fourth paragraph under the caption “Underwriting” and the information contained
in the eleventh and twelfth paragraphs under the caption “Underwriting”.
(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 the indemnifying party under subsection (a), (b) or
(c) above, notify the
21
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 the 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, 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 Stockholder 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
Stockholder 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
Stockholder 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
Selling Stockholder 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 Stockholder 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), (x) 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 and (y) the Selling Stockholder shall not be required to contribute an amount in excess of the product of (1) the
number of Securities sold by the Selling Stockholder pursuant to this Agreement, including any
Optional Securities, and (2) the public offering price per Security, as set forth on the cover page
of the Final Prospectus. 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 Stockholder 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
22
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).
(f) Control Persons. The obligations of the Company and the Selling Stockholder under this
Section shall be in addition to any liability which the Company and the Selling Stockholder may
otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration Statement and to each person,
if any, who controls the Company within the meaning of the Act.
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
Representatives may make arrangements satisfactory to the Selling Stockholder 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 Representatives and the Selling Stockholder 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 Stockholder, except as provided in Section 8 (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 Stockholder, 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 behalf of any Underwriter, the 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 Selling Stockholder will 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 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 Representatives, c/o
Credit Suisse Securities (USA) LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
LCD-IBD, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Syndicate Manager, and a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: General Counsel, or, if sent to the Selling Stockholder, will be
mailed, delivered or telegraphed and confirmed to him at ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇;
23
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 of Underwriters. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by the Representatives will be binding upon all the Underwriters.
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 Stockholder acknowledge
and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of Offered Securities and no fiduciary, advisory or agency
relationship between the Company or the Selling Stockholder, on the one hand, and the
Representatives, 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 Representatives have advised
or are advising the Company or the Selling Stockholder on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Selling Stockholder following discussions and arms-length
negotiations with the Representatives and the Company and the Selling Stockholder are capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Selling Stockholder have been
advised that the Representatives and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling Stockholder and
the Representatives have no obligation to disclose such interests and transactions to Company or
the Selling Stockholder by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Selling Stockholder waive, to the fullest extent permitted
by law, any claims they may have against the Representatives for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Representatives shall have no liability
(whether direct or indirect) to the Company or the Selling Stockholder 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 hereby submits 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 irrevocably and
unconditionally waives 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
waives and agrees 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.
24
If the foregoing is in accordance with the Representatives’ 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 Stockholder, the Company and the several Underwriters in
accordance with its terms.
| Very truly yours, | ||||||||
| Syntel, Inc., | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| By | ||||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||||
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Acting on behalf of themselves and as a
Representative of the several
Underwriters.
Credit Suisse Securities (USA) LLC
By |
||
| Name: | ||
| Title: |
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Acting on behalf of themselves and as a
Representative of the several
Underwriters.
Deutsche Bank Securities Inc.
By |
||
| Name: | ||
| Title: |
SCHEDULE A
| Number of | ||||
| Firm Securities | ||||
| Underwriter | to be Purchased | |||
Credit Suisse Securities (USA) LLC |
||||
Deutsche Bank Securities Inc. |
||||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC |
||||
▇▇▇▇▇▇▇▇▇ & Company, Inc. |
||||
Total |
3,000,000 | |||
SCHEDULE B
| 1. | General Use Free Writing Prospects (included in the General Disclosure Package) | |
| “General Use Issuer Free Writing Prospectus” includes each of the following documents: |
[None]
| 2. | Other Information Included in the General Disclosure Package |
[1. The initial price to the public of the Offered Securities.]
2. [list other information]
SCHEDULE
C
The Representatives shall have received letters, dated, respectively, the date hereof and each
Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLC confirming that they are a registered public
accounting firm and independent public accountants within the meaning of the Securities Laws to the
effect that:
(i) in their opinion the audited consolidated financial statements examined by
them and included or incorporated by reference in the Registration Statements and the
General Disclosure Package comply as to form in all material respects with the
applicable accounting requirements of the Securities Laws;
(ii) they have performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as described
in ▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Financial Information, on the unaudited quarterly consolidated
financial statements (including the notes thereto) of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statements and
the General Disclosure Package, and have made inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the Company and
its consolidated subsidiaries as to whether such unaudited quarterly consolidated
financial statements comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related published rules and
regulations; they have read the latest unaudited monthly consolidated financial
statements (including the notes thereto) of the Company and its consolidated
subsidiaries made available by the Company and the minutes of the meetings of
stockholders, Board of Directors and committees of the Board of Directors of the
Company, and have made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its consolidated
subsidiaries as to whether the unaudited monthly financial statements are stated on a
basis substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration Statements and the
General Disclosure Package; and on the basis thereof, nothing came to their attention
which caused them to believe that:
(A) the unaudited financial statements included or incorporated by reference
in the Registration Statements or the General Disclosure Package do not comply as to
form in all material respects with the Securities Laws, or that any material
modifications should be made to the unaudited quarterly consolidated financial
statements for them to be in conformity with generally accepted accounting
principles;
(B) with respect to the period subsequent to the date of the most recent
unaudited quarterly consolidated financial statements included in the General
Disclosure Package, at a specified date at the end of the most recent
month for which financial statements are available, there
were any increases in current liabilities or long-term liabilities, any decreases in
current assets or total assets, or any change in total shareholders’ equity of the
Company and its consolidated subsidiaries, as compared with the amounts shown on the
latest balance sheet included or incorporated by reference in the General Disclosure
Package; or for the period from the day after the date of the most recent unaudited
quarterly consolidated financial statements for such entities included in the
General Disclosure Package to such specified date, there were any decreases, as
compared with the corresponding period in the preceding year, in net revenues,
income from operations or the total or per share amounts of net income of the
Company and its consolidated subsidiaries, except for such changes, increases or
decreases set forth in such letter which the General Disclosure Package discloses
have occurred or may occur;
(iii) With respect to any period as to which officials of the Company have advised
that no consolidated financial statements as of any date or for any period subsequent to
the specified date referred to in (ii)(B) above are available, they have made inquiries
of certain officials of the Company who have responsibility for the financial and
accounting matters of the Company
and its consolidated subsidiaries as to whether, at a specified date not more than
three business days prior to the date of such letter, there were any increases in
current liabilities or long-term liabilities, any decreases in current assets or total
assets, or any change in stockholders’ equity of the Company and its consolidated
subsidiaries, as compared with the amounts shown on the most recent unaudited quarterly
financial statements for such entities included or incorporated by reference in the
General Disclosure Package to such specified date; or for the period from the day after
the date of the most recent unaudited quarterly financial statements for such entities
included or incorporated by reference in the General Disclosure Package to such
specified date, there were any decreases, as compared with the corresponding period in
the preceding year, in net revenues, income from operations, or in the total or per
share amounts of net income of the Company and its consolidated subsidiaries and, on the
basis of such inquiries and the review of the minutes described in paragraph (ii) above,
nothing came to their attention which causes them to believe that there was any such
change, increase or decrease, except for such changes, increases or decreases set forth
in such letter which the General Disclosure Package discloses have occurred or may
occur; and
(iv) they have compared specified dollar amounts (or percentages derived from such
dollar amounts) and other financial and statistical information contained in the
Registration Statements, each Issuer Free Writing Prospectus (other than any Issuer Free
Writing Prospectus that is an “electronic road show”, as defined in Rule 433(h)) and the
General Disclosure Package (in each case to the extent that such dollar amounts,
percentages and other financial and statistical information are derived from the general
accounting records of the Company and its subsidiaries or are derived directly from such
records by analysis or computation) with the results obtained from inquiries, a reading
of such general accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial and statistical
information to be in agreement with such results.
For purposes of this Schedule, if the Effective Time of the Additional Registration Statement
is subsequent to the execution and delivery of this Agreement, “Registration Statements” shall mean
the Initial Registration Statement and the Additional Registration Statement as proposed to be
filed shortly prior to its Effective Time. All financial statements included in material
incorporated by reference into the Registration Statements or the General Disclosure Package shall
be deemed included in the Registration Statements or the General Disclosure Package, as applicable,
for purposes of this Schedule.
SCHEDULE D
The Representatives shall have received letters, dated, respectively, the date hereof and each
Closing Date, of Ernst & Young LLP confirming that, during the period of their engagement by the
Company, they were a registered public accounting firm and independent public accountants within
the meaning of the Securities Laws and to the effect that:
(i) in their opinion the audited consolidated financial statements examined by them
and included or incorporated by reference in the Registration Statements and the General
Disclosure Package comply as to form in all material respects with the applicable
accounting requirements of the Securities Laws; and
(ii) they have compared specified dollar amounts (or percentages derived from such
dollar amounts) and other financial and statistical information contained in the
Registration Statements, each Issuer Free Writing Prospectus (other than any Issuer Free
Writing Prospectus that is an “electronic road show”, as defined in Rule 433(h)) and the
General Disclosure Package (in each case to the extent that such dollar amounts,
percentages and other financial and statistical information are derived from the general
accounting records of the Company and its subsidiaries or are derived directly from such
records by analysis or computation) with the results obtained from inquiries, a reading of
such general accounting records or other procedures specified in such letter and have found
such dollar amounts, percentages and other financial and statistical information to be in
agreement with such results.
For purposes of this Schedule,
if the Effective Time of the Additional Registration Statement
is subsequent to the execution and delivery of this Agreement, “Registration Statements” shall mean
the Initial Registration Statement and the Additional Registration Statement as proposed to be
filed shortly prior to its Effective Time. All financial statements included in material
incorporated by reference into the Registration Statements or the General Disclosure Package shall
be deemed to be included in the Registration Statements or the General Disclosure Package, as
applicable, for purposes of this Schedule.
SCHEDULE E
Lockup Letters
| Name | Position | |
▇▇▇▇▇▇ ▇▇▇▇▇
|
Director | |
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
Director | |
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
Director | |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
Director | |
▇▇▇▇▇▇ ▇▇▇▇▇
|
Director | |
▇▇▇▇▇▇ ▇▇▇▇▇
|
Director and Vice President | |
▇▇▇▇▇ ▇▇▇▇▇▇
|
Director | |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
President and COO | |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
CFO | |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
▇▇▇, ▇▇ | |
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
President, Banking & Finance Business Unit | |
▇.▇. ▇▇▇▇▇▇
|
Senior VP | |
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇ | |
▇▇▇▇▇▇▇▇▇▇ Chidambaram
|
VP | |
▇▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust Dtd 2/28/97
|
Beneficial Owner | |
▇▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust Dtd 2/28/97 II
|
Beneficial Owner |