Exhibit 1.1
Calamos Asset Management, Inc.
18,000,000 Shares plus an option to purchase from the Company
up to 2,700,000 additional Securities to cover over-allotments
Class A Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
October [-], 2004
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Calamos Asset Management, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, 18,000,000 shares of Class A Common Stock, $0.01 par
value ("Common Stock") of the Company (said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Securities"). The Company
also proposes to grant to the Underwriters an option to purchase up to 2,700,000
additional shares of Common Stock to cover over-allotments (the "Option
Securities;" the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties.
(i) The Company, Calamos Holdings LLC (the "Operating Company") and
Calamos Family Partners, Inc. ("CFP") jointly and severally represent and
warrant to, and agree with, each Underwriter as set forth below in this
Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-117847) on Form S-1, including a
related preliminary prospectus, for registration
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under the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, each including a related
preliminary prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission one of the following:
either (1) prior to the Effective Date of such registration statement, a
further amendment to such registration statement (including the form of
final prospectus) or (2) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and 424(b). In
the case of clause (2), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, and, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein pursuant to Section
5(i)(a) hereof.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined in Section 3 hereof) and
on any date on which Option Securities are purchased by the Underwriters
pursuant to Section 2(b), if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus together with any supplement thereto (or any prospectus
wrapper) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company, the Operating Company and
CFP make no representations or warranties as to the information contained
in or omitted from the Registration Statement (or any amendment thereto),
or the Prospectus, any preliminary prospectus and any supplement thereto
or prospectus wrapper prepared in connection therewith in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the
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Representatives specifically for inclusion in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) Each of the Company, the Operating Company and the designated
subsidiaries of the Company and the Operating Company listed on Exhibit A
hereto (the "Designated Subsidiaries") has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction in which it is chartered or organized with full
corporate or limited liability company, as the case may be, power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign business and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify or to be in good
standing could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), business prospects,
earnings, business or properties of the Company, the Operating Company and
their respective subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business ("Material Adverse
Effect"), except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(d) All the outstanding membership interests and shares of capital
stock, as applicable, of the Operating Company and each Designated
Subsidiary of the Company and the Operating Company have been duly and
validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Prospectus, all outstanding
membership interests and shares of capital stock, as applicable, of the
Operating Company and of each Designated Subsidiary of the Company and the
Operating Company are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(e) The Company's and the Operating Company's authorized equity
capitalization is as set forth in the Prospectus; the capital stock of the
Company and the membership interests of the Operating Company conform in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the Securities are in valid and
sufficient form; neither the holders of outstanding shares of
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capital stock of the Company nor the holders of outstanding membership
interests of the Operating Company are entitled to preemptive or other
rights to subscribe for the Securities or membership interests of the
Operating Company; and, except as set forth, or contemplated, in the
Prospectus, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or ownership
interests in the Company or the Operating Company are outstanding.
(f) There is no contract or other document of a character required
to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as required;
and the statements in the Prospectus under the headings "Regulatory
Environment" and "Description of Capital Stock" insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings. The discussion in the Prospectus
under the heading "U.S. Federal Income Tax Considerations," insofar as
such discussion represents legal conclusions or statements of U.S.
ferderal income tax law, subject to the limitations and conditions set
forth therein, provides a fair summary of the legal matters referred to
therein in all material respects.
(g) This Agreement has been duly authorized, executed and delivered
by the Company, the Operating Company and CFP.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body having jurisdiction over the Company,
the Operating Company, CFP or any of their respective subsidiaries is
required to be made or obtained for the performance by the Company, the
Operating Company or CFP of their respective obligations in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated herein and
in the Prospectus.
(j) Neither the issue and sale of the Securities by the Company nor
the consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict
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with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company, the
Operating Company, or any of their respective Designated Subsidiaries or
CFP pursuant to, (i) the charter, by-laws or limited liability company
agreement (or similar organizational document) of the Company, the
Operating Company or any of their respective Designated Subsidiaries or
CFP, (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company, the Operating
Company or any of their respective Designated Subsidiaries or CFP is a
party or bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Company, the Operating Company or any of their respective Designated
Subsidiaries or CFP of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company, the Operating Company or any of their respective Designated
Subsidiaries or CFP or any of its or their properties; except, with
respect to sub-clauses (ii) and (iii) above, where such conflict, breach,
violation or imposition would not result in a Material Adverse Effect,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(k) Other than as described in the Prospectus, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
(l) The consolidated historical financial statements and schedules
of Calamos Holdings, Inc. and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash
flows of Calamos Holdings, Inc. as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements
of Regulation S-X under the Act for registration statements on Form S-1
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis (except as otherwise noted
therein). The selected financial data set forth under the caption
"Selected Historical Consolidated Financial Information and Other Data" in
the Prospectus and Registration Statement fairly present, on the basis
stated in the Prospectus and the Registration Statement, the information
included therein. The pro forma financial statements of the Company
included in the Prospectus and the Registration Statement include
assumptions that provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma adjustments have been properly
applied, in all material respects, to the applicable historical amounts in
the compilation of those statements. The pro forma financial statements
included in the Prospectus and the Registration
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Statement comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act for pro forma
financial statements included in registration statements on Form S-1.
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Operating Company or any of their respective Designated
Subsidiaries or CFP or the Company's, the Operating Company's or their
respective Designated Subsidiaries' or CFP's property is pending or, to
the knowledge of the Company, the Operating Company or CFP, threatened
that (i) could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(n) Prior to the transactions described under "Reorganization and
Holding Company Structure" in the Prospectus, CFP owned or leased all such
property as are necessary to the conduct of its operations, except where
the failure to do so would not result in a Material Adverse Effect. After
the transactions described under "Reorganization and Holding Company
Structure" in the Prospectus, each of the Company, the Operating Company
and each of their respective Designated Subsidiaries will own or lease in
the aggregate all such properties as are necessary to the conduct of their
operations, except where the failure to do so would not result in a
Material Adverse Effect.
(o) None of the Company, the Operating Company or any of their
respective Designated Subsidiaries or CFP is in violation or default of
(i) any provision of its charter, bylaws or limited liability company
agreement (or similar organizational document), (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company,
the Operating Company or such Designated Subsidiary or CFP or any of its
properties, as applicable; except, with respect to sub-clauses (ii) and
(iii) above, where such violation or default would not result in a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(p) KPMG LLP, who have certified certain financial statements of
Calamos Holdings, Inc. and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the
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Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
(q) Each of the Company, the Operating Company and their respective
Designated Subsidiaries has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have
a Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto)) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it by an applicable taxing authority or agency, to the extent that
any of the foregoing is due and payable (taking into account all relevant
extensions), except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(r) No labor problem or dispute with the employees of the Company,
the Operating Company or any of their respective Designated Subsidiaries
exists or, to the knowledge of the Company, the Operating Company or CFP
is threatened or imminent.
(s) The Company, the Operating Company and each of their respective
Designated Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
none of the Company, the Operating Company or any of their respective
Designated Subsidiaries has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(t) Other than as set forth in Section 10.1 of the Note Purchase
Agreement dated April 29, 2004 between the Operating Company and the note
purchasers named therein, neither the Operating Company nor any subsidiary
of the Company or the Operating Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on its capital stock, from repaying to the Company any
loans or advances to it from the Company or from transferring any of its
property or assets to the Company or any other subsidiary of the Company,
except as described in or contemplated by the Prospectus (exclusive of any
supplement thereto).
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(u) The Company, the Operating Company and their respective
Designated Subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses,
except where failure to do so would not result in a Material Adverse
Effect, and none of the Company, the Operating Company or any of their
respective Designated Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(v) The Company, the Operating Company and each of their respective
Designated Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) There is and has been no failure on the part of the Company and
any of the Company's directors or officers or the Operating Company and
any of the Operating Company's directors or officers, in their capacities
as such, to comply with any provision presently applicable to it of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Sarbanes Oxley Act"), including Section 402
related to loans and, the Company is actively taking steps to ensure that
it will be in compliance with other applicable provisions of the Sarbanes
Oxley Act upon the effectiveness of such provisions in relation to the
Company.
(x) The Company, the Operating Company and their respective
Designated Subsidiaries own, possess, license or have other rights to use,
or can acquire on reasonable terms, adequate patents, patent applications,
trade and service marks, trade and service ▇▇▇▇ registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the "Intellectual
Property") necessary for the conduct of the Company's and the Operating
Company's business as now conducted or as proposed in the Prospectus to be
conducted. None of the Company, the Operating Company or any of their
respective Designated Subsidiaries has received any written notice of
infringement of or conflict with asserted rights of
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others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interests of the Company, the Operating Company
and their respective Designated Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) would have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(y) Prior to the Execution Time, the transactions described as the
"Formation Transaction" under the caption "Reorganization and Holding
Company Structure" contained in the Prospectus shall have been completed.
(z) Prior to the Execution Time, the Company's certificate of
incorporation will be amended and restated in the manner described under
the caption "Reorganization and Holding Company Structure."
(aa) Neither the Company nor the Operating Company is required to be
registered, licensed or qualified as an investment adviser or a
broker-dealer or as a commodity trading advisor, a commodity pool operator
or a futures commission merchant or any or all of the foregoing, as
applicable; each of the Company's and the Operating Company's subsidiaries
that is required to be registered, licensed or qualified as an investment
adviser or a broker-dealer or as a commodity trading advisor, a commodity
pool operator or a futures commission merchant or any or all of the
foregoing, as applicable, is so registered, licensed or qualified in each
jurisdiction where the conduct of its business requires such registration,
license or qualification (and such registration, license or qualification
is in full force and effect), and is in compliance with all applicable
laws requiring any such registration, licensing or qualification, except
for any failures to be so registered, licensed or qualified or to be in
such compliance would not have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus; each subsidiary of the Company
and the Operating Company that is required to be registered as an
investment adviser under the Investment Advisers Act of 1940, as amended
(the "Advisers Act") has adopted a written compliance program reasonably
designed to ensure compliance with the Advisers Act and has appointed a
chief compliance officer.
(bb) Neither the Company nor the Operating Company is a party to any
investment advisory agreement or distribution agreement; each of the
investment advisory agreements and distribution agreements to which any of
the Company's or the Operating Company's subsidiaries is a party is a
valid and legally binding obligation of such subsidiary which is a party
thereto and, solely with respect to investment advisory agreements, in
compliance with the applicable provisions of the
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Advisers Act and, solely with respect to distribution agreements, in
compliance with the Investment Company Act, except for any failures to be
so in compliance that, individually or in the aggregate, would not
reasonably have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto); and
none of the Company's or the Operating Company's subsidiaries is in breach
or violation of or in default under any such agreement which breach,
violation, default or invalidity, individually or in the aggregate, would
reasonably be likely to have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(cc) Neither the Company nor the Operating Company advises any
funds; each fund advised by any of the Company's or the Operating
Company's subsidiaries (a "Fund" or the "Funds") and which is required to
be registered with the Commission as an investment company under the
Investment Company Act is duly registered with the Commission as an
investment company under the Investment Company Act, except for any
failures to be so registered that, individually or in the aggregate, would
not reasonably be likely to have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto) and each such Fund has adopted a written compliance program
reasonably designed to ensure compliance with Federal Securities Laws (as
defined below), including policies and procedures that provide for the
oversight of compliance by each investment adviser, principal underwriter,
administrator and transfer agent of the Fund, and has appointed a chief
compliance officer. "Federal Securities Laws" shall mean the Investment
Company Act, the Advisers Act, the Act, the Exchange Act, the Sarbanes
Oxley Act, Title V of the ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Act and the rules adopted by
the Commission thereunder, as well as certain applicable provisions under
the Bank Secrecy Act and any rules adopted thereunder by the Commission or
the Department of the Treasury.
(dd) Consummation of the transactions contemplated by this
Agreement, including the transactions described as the "Formation
Transaction" under the caption "Reorganization and Holding Company
Structure" contained in the Prospectus, will not constitute an
"assignment" within the meaning of such term under the Investment Company
Act (and the rules and regulations thereunder) or the Advisers Act (and
the rules and regulations thereunder)[ of any of the investment advisory
contracts to which any of the Operating Company's subsidiaries is a
party]; nor will consummation of such transactions adversely affect in any
material respect the ability of the Company, the Operating Company and
their respective subsidiaries to conduct their respective businesses in
compliance with applicable law as described in the Prospectus, including,
but not limited to, providing investment
11
advisory services to clients and mutual funds, whether or not such funds
are registered under the Investment Company Act.
Any certificate signed by any officer of the Company, the Operating
Company or CFP and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, the Operating Company or CFP, as the
case may be, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $[-] per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto, plus any additional number of
Underwritten Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to 2,700,000 Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time on or before the 30th day after the date
of the Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The maximum number of Option Securities to
be sold by the Company is 2,700,000. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on November
[-], 2004, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9
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hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Securities being sold by the Company
to or upon the order of the Company by wire transfer payable in same-day funds
to the account or accounts specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall not be earlier than two Business Days nor later
than five Business Days after the exercise of said option) for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to the
account or accounts specified by the Company. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object in writing. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence
13
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding 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.
(b) The Company will comply with the Act so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If, at any time when a prospectus
relating to the Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then supplemented
would include any 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 shall be
necessary to amend the Registration Statement or supplement the Prospectus
to comply with the Act or the rules thereunder, the Company promptly will
(1) notify each of the Underwriters in writing of any such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (i)(a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request. The Underwriters agree severally that, upon receipt
from the Company of any such written notice, such Underwriter will
immediately discontinue any offer or sale of the Securities until such
Underwriter has received such amendment or supplement or until such
Underwriter is advised by the Company in writing that the use of the then
existing Prospectus may be resumed.
(c) As soon as reasonably practicable, the Company will make
generally available to its security holders and to the Representatives an
earnings statement or statements of the Company and
14
its subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters three signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request. The
copies of the Registration Statement furnished to the Representatives and
counsel for the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T. The Prospectus and any
amendments or supplements thereto furnished to the Representatives will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) The Company will use its commercially reasonable efforts to
arrange, if necessary, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for
the distribution of the Securities; provided that in no event shall the
Company be obligated to qualify to do business or as a dealer in
securities in any jurisdiction where it is not now so qualified, to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company will not, without the prior written consent of
Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., offer, sell,
contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities convertible into, or exercisable, or exchangeable
for, shares of Common Stock; or publicly announce an intention to effect
any such transaction, for a period of 180 days after the date of the
15
Underwriting Agreement, provided, however, that the Company may issue and
sell Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in effect at
the Execution Time and file a registration statement with respect to such
Common Stock and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time.
(g) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(h) The Company will use its best efforts to effect the listing of
the Common Stock (including the Securities) on the Nasdaq National Market.
(i) 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, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the Nasdaq National Market; (vi)
any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states in accordance
with Section 5(e) (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the NASD
(including filing fees and the reasonable fees and expenses of counsel for
the Underwriters relating to such filings); (viii) the transportation and
16
other expenses incurred for or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities
[(except where such transportation and other expenses are incurred jointly
by the Underwriters and the Company, in which case, all parties shall bear
their proportional shares of such expenses)]; (ix) the fees and expenses
of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of their
obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company, the Operating Company
and CFP contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company, the Operating Company and CFP made in any certificates pursuant
to the provisions hereof, to the performance by the Company, the Operating
Company and CFP of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the best knowledge of the Company, the Operating Company
or CFP, threatened.
(b) The Company shall have requested and caused Shearman & Sterling
LLP and Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C., counsel for the Company,
to have furnished to the Representatives their opinion and letter, dated
the Closing Date and addressed to the Representatives, attached hereto as
Schedule A and Schedule B, respectively.
(c) The Representatives shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of
17
the Securities, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company and CFP shall have furnished to
such counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(d) Each of the Company, the Operating Company and CFP shall have
furnished to the Representatives a certificate, signed by its Chairman of
the Board or the President and its principal financial or accounting
officer, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
(1) the representations and warranties of the Company, the
Operating Company and CFP in this Agreement are true and correct on and as
of the Closing Date with the same effect as if made on the Closing Date
and the Company, the Operating Company and CFP complied with all the
agreements and satisfied all the conditions on their parts to be performed
or satisfied at or prior to the Closing Date;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's, the Operating Company's or
CFP's, as applicable, knowledge, threatened; and
(3) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or
otherwise), business prospects, earnings, business or properties of the
Company, the Operating Company and their respective subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives letters, at the Execution Time and at the
Closing Date, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the applicable rules and regulations adopted by the Commission
thereunder and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules and pro forma financial
18
statements included in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
(2) on the basis of a reading of the latest unaudited
financial statements made available by the Company, the Operating Company
and their respective subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
committees of the board of directors of the Company, the Operating Company
and their respective subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting matters
of the Company, the Operating Company and their respective subsidiaries as
to transactions and events subsequent to June 30, 2004, nothing came to
their attention which caused them to believe that:
(A) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with applicable accounting
requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to
registration statements on Form S-1; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus;
(B) with respect to the period subsequent to June 30,
2004, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the capital
stock, increase in long-term debt, or decrease in consolidated
net current assets or stockholders' equity of the Company, the
Operating Company and their respective subsidiaries on a
consolidated basis as compared with the amounts shown on the
June 30, 2004 audited consolidated statement of financial
condition included in the Registration Statement and the
Prospectus, or for the period from July 1, 2004 to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in the total or
per-share amounts of income or of net income, except in all
instances for changes or decreases set forth in such letter;
or
19
(C) the information included in the Registration
Statement and Prospectus in response to, Item 302
(Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity in all material respects
with the applicable disclosure requirements of Regulation S-K.
(3) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting or financial (which is limited to accounting or financial
information derived from the general accounting records of the Company,
the Operating Company and their respective subsidiaries) set forth in the
Registration Statement and the Prospectus agrees with the accounting
records of the Company, the Operating Company and their respective
subsidiaries, excluding any questions of legal interpretation.
(4) on the basis of a reading of the unaudited pro forma
financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"); carrying out certain
specified procedures; inquiries of certain officials of the Company and
the Operating Company who have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company, the Operating Company and their respective
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
20
of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(g) Prior to the Closing Date, the Company, the Operating Company
and CFP shall have furnished to counsel for the Underwriters such further
information, certificates and documents as they may reasonably request for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as contemplated herein.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and
authorized for trading on the Nasdaq National Market, and satisfactory
evidence of such actions shall have been provided to the Representatives.
(j) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit B hereto
from each officer and director of the Company and CFP and the stockholders
of CFP addressed to the Representatives.
(l) Prior to the Execution Time, the formation transactions
described under the caption "Reorganization and Holding Company Structure"
contained in the Prospectus shall have been completed and satisfactory
evidence of such actions shall have been provided to the Representatives.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
21
The documents required to be delivered by this Section 6 shall be
delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for
the Underwriters, at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof, or because of any refusal,
inability or failure on the part of the Company, the Operating Company or CFP to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company, the Operating
Company or CFP will reimburse the Underwriters through Citigroup Global Markets
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
and Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company, the Operating Company and CFP jointly and severally
agree to indemnify and hold harmless each Underwriter, the directors,
officers and employees of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law 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 a material fact
contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company, the Operating Company and CFP
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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company, the
Operating Company or CFP may otherwise have.
22
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, the Operating Company, CFP, each of their
respective directors, officers and employees, and each person who controls
the Company, the Operating Company and CFP within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company, the Operating Company and CFP acknowledge
that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading
"Underwriting", (i) the list of underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ not more than one separate counsel (in addition
to local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
23
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a),(b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company, the Operating Company
and CFP, jointly and severally, and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company, the Operating Company, CFP and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Operating Company and CFP
on the one hand and by the Underwriters on the other from the offering of
the Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company,
the Operating Company and CFP, jointly and severally, and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company, the Operating Company and CFP on the one hand and of the
Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company, the Operating Company
and CFP shall
24
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by the Company, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company, the Operating Company or
CFP on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Operating Company, CFP and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), 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. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer and employee of an Underwriter
shall have the same rights to contribution as such Underwriter, and each
person who controls the Company, the Operating Company or CFP within the
meaning of either the Act or the Exchange Act, each officer and employee
of the Company and each director of the Company, the Operating Company and
CFP shall have the same rights to contribution as the Company, the
Operating Company or CFP, as the case may be, subject in each case to the
applicable terms and conditions of this paragraph (e).
(e) The liability of CFP under the indemnity and contribution
agreements contained in this Section 8 shall be limited to an amount equal
to the gross proceeds received by CFP from the Company for membership
interests in the Operating Company as described under the caption
"Reorganization and Holding Company Structure" contained in the
Prospectus. The Company, the Operating Company and CFP may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they
each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters
25
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter, CFP, the Operating Company or the Company. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company, the
Operating Company, CFP and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) there shall have occurred a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, the Operating Company and their respective
subsidiaries, taken as whole, whether or not arising in the ordinary course of
business, (ii) trading in the Company's Common Stock shall have been suspended
by the Commission or the Nasdaq Stock Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq Stock Market shall have been
suspended or limited or minimum prices shall have been established on either of
such Exchanges, (iii) a banking moratorium shall have been declared either by
Federal or New York State authorities, (iv) a material disruption in commercial
banking or securities settlement or clearance services in the United States
shall have occurred, the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto) or (v) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company, or
its officers, of the Operating Company, or its officers, of CFP, or its officer,
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, CFP, the Operating Company or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
26
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, with a copy to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; or, if sent to the Company, the Operating Company or CFP,
will be mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to it at
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Legal
Department, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
27
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or,
if no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Operating Company, CFP and the several Underwriters.
Very truly yours,
Calamos Asset Management, Inc.
By:
----------------------------
Name:
Title:
Calamos Holdings LLC
By:
----------------------------
Name:
Title:
Calamos Family Partners, Inc.
By:
----------------------------
Name:
Title:
29
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: Citigroup Global Markets Inc.
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE A
Based upon the foregoing and upon such other investigation as we have
deemed necessary and subject to the qualifications set forth below, we are of
the opinion that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the law of the State of Delaware with corporate
power and authority under such law to conduct its business as described in
the Prospectus.
(ii) Holdings is a limited liability company duly formed, validly
existing and in good standing under the law of the State of Delaware with
limited liability company power and authority under such law to conduct
its business as described in the Prospectus.
(iii) CFP is a corporation duly incorporated, validly existing and
in good standing under the law of the State of Delaware with corporate
power and authority under such law to conduct its business as described in
the Prospectus.
(iv) The Company (a) has the corporate power to execute, deliver and
perform the Underwriting Agreement and (b) has taken all corporate action
necessary to authorize the execution, delivery and performance of the
Underwriting Agreement.
(v) Holdings (a) has the limited liability company power to execute,
deliver and perform the Underwriting Agreement and (b) has taken all
limited liability company action necessary to authorize the execution,
delivery and performance of the Underwriting Agreement.
(vi) CFP (a) has the corporate power to execute, deliver and perform
the Underwriting Agreement and (b) has taken all corporate action
necessary to authorize the execution, delivery and performance of the
Underwriting Agreement.
(vii) No authorization, approval or other action by, and no notice
to or filing with, any United States federal or New York governmental
authority or regulatory body, or any third party that is a party to any of
the documents specified in Schedule B, is required for the due execution,
delivery or performance by the Company, Holdings or CFP of the
Underwriting Agreement, except as have been obtained and are in full force
and effect under the Securities Act or as may be required under the
securities or blue sky laws of any jurisdiction in the United States in
connection with the offer and sale of the Securities.
(viii) The Underwriting Agreement has been duly executed and
delivered by each of the Company, Holdings and CFP.
(ix) The Shares have been duly authorized by the Company and, when
issued and delivered as provided in the Underwriting
Agreement, the Shares will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
preemptive rights pursuant to the General Corporation Law of the State of
Delaware, the certificate of incorporation or the by-laws of the Company
or any agreement listed in Schedule B.
(x) The Company has an actual authorized and outstanding
capitalization as set for in the Registration Statement and the
Prospectus; all of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are
fully-paid and non-assessable.
(xi) All of the outstanding membership interests in Holdings have
been duly authorized and validly issued and are fully paid.
(xii) The statements in the Prospectus under the caption "Business
-- Regulatory Environment", "Description of Capital Stock" and "U.S.
Federal Income Tax Considerations", in each case, insofar as such
statements constitute summaries of legal matters or documents referred to
therein, fairly summarize in all material respects the legal matters or
documents referred to therein.
(xiii) The Company is not and, after issuance of the shares and the
use of the proceeds therefrom as described in the Prospectus will not be,
required to register as an investment company under the Investment Company
Act of 1940, as amended.
(xiv) To our knowledge, without investigation, there is no action,
suit, investigation, litigation or proceeding against the Company,
Holdings or CFP, pending or threatened before any court, governmental
agency or arbitrator that challenges the legality, validity or
enforceability of the Underwriting Agreement.
(xv) The execution and delivery by the Company, Holdings and CFP of
the Underwriting Agreement, and the performance by each of the Company,
Holdings and CFP of its respective obligations thereunder and the
consummation of the transactions contemplated thereby will not, (a) result
in a violation of the Company's certificate of incorporation or by-laws,
Holdings's limited liability company agreement, or CFP's certificate of
incorporation or by-laws (b) result in a violation of Generally Applicable
Law or any order, writ, judgment, injunction, decree, determination or
award listed in Schedule B or (c) result in a breach of, a default under
or the acceleration of (or entitle any party to accelerate) the maturity
of any obligation of the Company, Holdings or CFP under, or result in or
require the creation of any lien upon or security interest in any property
of the Company, Holdings or CFP pursuant to the terms of, any agreement or
document listed in Schedule B.
SCHEDULE B
Based upon and subject to the qualifications, assumptions and limitations
set forth herein, we are of the opinion that:
(1) each of the Subsidiary LLCs has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, with full limited liability company power and authority
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign limited liability company and is in good
standing under the laws of the State of Illinois;
(2) all the outstanding membership interests of the Subsidiary LLCs have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, based solely upon a review of each Subsidiary LLC's
transfer records and (a) except as otherwise set forth in the Prospectus,
and (b) except as may be provided in that certain note purchase agreement
governing the terms of the 5.24% senior unsecured notes due April 29, 2011
issued by Family Partners and subsequently contributed to Holdings, all
outstanding membership interests of the Subsidiary LLCs are owned of
record by Holdings, free and clear of any perfected security interest;
(3) the Company and Holdings are duly qualified to do business in the State of
Illinois as a foreign corporation and a foreign limited liability company,
respectively, and are in good standing under the laws of the State of
Illinois;
(4) consummation of the transactions contemplated by this Agreement, including
the transactions described under the caption "Reorganization and Holding
Company Structure" contained in the Prospectus, will not constitute an
"assignment", within the meaning of such term under the Investment Company
Act (and the rules and regulations thereunder) or the Advisers Act (and
the rules and regulations thereunder);
(5) (a) neither the Company nor Holdings is required to be registered,
licensed or qualified as an investment adviser or a broker-dealer; (b)
each of the Predecessors (i) that was required to be registered as an
investment adviser under the Advisers Act immediately prior to the
effective time of the Reorganization was so registered (and such
registration was in full force and effect at such time) and (ii) that was
required to be registered as a broker-dealer under the Exchange Act
immediately prior to the effective time of the Reorganization was so
registered (and such registration was in full force and effect at such
time); (c) each of the Subsidiary LLCs that is required to be registered,
licensed or qualified as an investment adviser or a broker-dealer under
the Advisers Act, the Exchange Act or in any State in which the conduct of
its business requires such registration, licensing or qualification has
made filings to succeed by amendment to the registration of its respective
Predecessor following the effective time of the Reorganization, except
where any such failure to file would not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of Calamos, taken as a whole,
whether or not arising from transactions in the ordinary course of
business; and
(6) each fund listed on Schedule A attached hereto which is required to be
registered with the Commission as an investment company under the
Investment Company Act is so registered.
SCHEDULE I
UNDERWRITERS NUMBER OF UNDERWRITTEN SECURITIES
TO BE PURCHASED
-------------
Total
=============
EXHIBIT A
Designated Subsidiaries
Calamos Holdings LLC
Calamos Advisors LLC
Calamos Financial Services LLC
Calamos Partners LLC
Calamos Property Management LLC
Exhibit A-1
EXHIBIT B
[Letterhead of officer, director or major stockholder of
Calamos Asset Management, Inc.]
Calamos Asset Management, Inc.
Public Offering of Class A Common Stock
October [-], 2004
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Calamos Asset
Management, Inc., a Delaware corporation (the "Company"), Calamos Holdings, LLC,
Calamos Family Partners, Inc. and each of you as representatives of a group of
Underwriters named therein, relating to an underwritten public offering of Class
A Common Stock, $0.01 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., offer, sell,
contract to sell, pledge or otherwise dispose of, (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the undersigned or any affiliate of the
undersigned or any person in privity with the undersigned or any affiliate of
the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into, or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period of
[180][365] days after the date of the Underwriting Agreement, other than shares
of Common Stock disposed of as bona fide gifts approved by Citigroup Global
Markets Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., provided, however, that the foregoing
restrictions shall not preclude or otherwise limit (i) the exercise of an option
to purchase shares of Common Stock, (ii) the sale or transfer of shares of
Common Stock to the Company to satisfy any payment or withholding obligations in
connection with the exercise of an option to purchase Common Stock or (iii)
transfers (A) pursuant to the laws of descent or distribution, (B) to any
immediate family member of the undersigned who agrees to be
Exhibit B-1
bound by the restrictions of this letter, (C) to any trust for the benefit of
the undersigned or the undersigned's immediate family members that agrees to be
bound by the restrictions in this letter or (D) from any trust for the benefit
of the undersigned or the undersigned's immediate family members pursuant to the
trust's terms, to its beneficiaries who agree to be bound by the restrictions in
this letter.
If (i) during the last 17 days of the Restricted Period the Company issues
an earnings release, or material news or a material event relating to the
Company occurs or (ii) prior to the expiration of the Restricted Period the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Restricted Period, then the restrictions
imposed by this letter shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or
major stockholder]
[Name and address of officer, director or major stockholder]
Exhibit B-2